PEOPLE v. TRUJEQUE (TOMMY ADRIAN)Appellant’s Opening BriefCal.March 23, 2012SUPREME COURTCOY Capy S083594 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Defendant and Appellant. ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiffand Respondent, ) (Los Angeles County ) Superior Court No. v. ) VA048531-01) ) TOMMY ADRIAN TRUJEQUE, ) ) ) ) APPELLANT’S OPENING BRIEF Appeal from the Judgement of the Superior Court.of the State of California for the County of Los Angeles HONORABLE PATRICK COUWENBERG,JUDGE MICHAELJ.HERSEK Telephone: (415) 904-5600 Spaulding@ospd.ca.gov ‘1 State Public Defenderore ¢ cour su FILED CHRISTINA A. SPAULDING . State Bar No. 228631 ve 4 qort . Deputy State Public Defender \ ch qje* 221 MainStreet, 10th Floor c Ke Orne’ | San Francisco, CA 94105 Attorneys for Appellant DATE PENALTY TABLE OF CONTENTS Page TABLE OF AUTHORITIES 2.0.0.0... cece ccc cece ene eeennns XIV APPELLANT’S OPENING BRIEF .....cece eee teen e teens l INTRODUCTION 2.0.0...cece cence ee ne eens eenneneus 1 STATEMENTOF THE CASE 2.00.0... ccc ccc cee cece en eee eeenenns 2 STATEMENT OF APPEALABILITY ........0. 0.00002 cece eee eee ene eeaes 8 STATEMENTOF FACTS ...........0000 0c cece eee eees Leet eee e eee eee!8 A. THE GUILT-INNOCENCEPHASE......... 0.0000 c cece cece cece ences 8 1. The Facundo Murder .... 0.2... ccc ccc cece cece cece een anes 8 2. The Apedaca Murder ...... 2... 00.000 ccc cc cee ccc cence eeeas 12 3. The Spartan Burgers Robbery ............ 000000 cc cece eee eee aes 15 4. Appellant’s Confesssion 0.0... 0.0.0. c ccc cece cece eee eeeee 15 a. Facundo 20.0...ceeeee cee ene enaes 16 b. Apodaca .. 0...cccee eee eee eeee 17 C. Spartan Burgers Robbery .............000 000. c eee ee cence 19 5. The Garcetti Letter... 0...ccce eee tenes 20 6. Appellant’s Testimony ..... 0.0... ccc ccc eee e een enee 21 7. Jury Instructions . 0.0...ccc ce cece eee eenenaes 22 B. PENALTY PHASE .. 0...cccete cree een ee neeaes 23 1. Aggravating Evidence ...... 00... ccc cece ene eens 23 II. 2. 3. TABLE OF CONTENTS Page a. The Prior Murder ....... 0.0...eeeeee 23 b. Other Offenses ........ 0.0... cece eet eee eens 24 Case in Mitigation .. 0.0...eens27 a. Limitations on the Mitigation Case .... 2... 0.2... eee eee 27 b. Mitigating Evidence ..... 2.2...eee29 Closing Argument ........ 0.0... eee e eee ee ee eee processes 37 APPELLANT’S DEATH SENTENCE IS UNRELIABLEIN “VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE THE PRIOR-MURDERSPECIAL CIRCUMSTANCEIS BASED ON AN INVALID CONVICTION FOR SECOND DEGREE MURDER THAT WAS OBTAINED IN VIOLATION OF DOUBLE JEOPARDY [FILED UNDER SEAL] ................... cece ees 38 A. Relevant Facts 2... 0.0... ceceeee tenes 39 B. Appellant’s-Second Degree Murder Conviction Is Invalid D. under the Double Jeopardy Clauses of the Federal and State Constitutions 0.0...ccceet ne eee teen 48 The Invalidity of Appellant’s Prior Conviction Is Cognizable on Appeal Although it Was Not ChallengedSpecifically on Double Jeopardy Grounds below .......... 02. c cece ees 53 Conclusion ......... 0... ce eee eee ee ee eee eee eee eneee 55 THE TRIAL COURT ERRONEOUSLY APPLIED PENAL CODE SECTION 1387.1 RETROACTIVELY TO PERMIT THE STATE TO REFILE THE PREVIOUSLY BARRED APODACA MURDER CHARGE IN VIOLATION OF THE EX POST FACTO CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS 2.0.0.0...eens 57 il I. E. TABLE OF CONTENTS Page Introduction . 6...eceen teen tence ee eeas 57 Procedural History 2... 2...cece cece eee eens 59 The Retroactive Application of Section 1387.1 to Appellant Violates the Ex Post Facto Clauses of the State and Federal Constitutions 2.0...eeecee cence ene enenees 65 1, Section 1387.1 Was Not Intended to Apply Retroactively . 0.0...cececece eee eee eees 65 ~ 2, Applying Section 1387.1 Retroactively Violated the Ex Post Facto Clause ........ 0.0... cece cece eee 67 Even If Section 1387.1 Could Properly Be Applied Retroactively, Prosecution of the Apodaca Murder Charge WasBarred Because it Had Been Dismissed Three Times ............ 69 1, Holding Appellant to Answer for a Lesser Offense was an Order Terminating an Action under Section 1387 .........wee eee eee teen eee 70 2. The State-Did-not Prove Excusable Neglect ...............0.. 81 Conclusion 0...eeeeee e ene eee ene nnas 85 THETRIAL COURT IMPROPERLY REVOKED APPELLANT’SPRO PER STATUSIN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS 2.0...ecce cece eee eee nee eae 86 A. Proceedings Below ....... 0... 0c cece cece etc e eee eens 86 B. The Law Governing Self-Representation ..................000 0000 90 C. Appellant’s Pro Per Status Could Not Properly be Terminated Because of His Loss of Library Privileges ...............00..0 000. 92 ili IV. F, TABLE OF CONTENTS Page The Substitution of Counsel, Premised on a Mistake ofLaw Whichthe Trial Judge Failed to Correct, Did Not Validly Waive Appellant’s Right to Represent Himself .................... 95 The Trial Court’s Remaining Reasons for Revoking Appellant’s Pro Per Status Were Invalid ...................000005- 98 Conclusion ...... 0.0... c eee eee eeecd tenes 98 THE TRIAL COURT ERRED BY ALLOWINGAPPELLANT’S AUNT AND UNCLE TO MAKE AN OVERBROAD, BLANKET ASSERTION OF THE PRIVILEGE AGAINST SELF INCRIMINATION WHICH PRECLUDED APPELLANT FROM PRESENTING CRITICAL EVIDENCE IN HIS DEFENSE AND IN MITIGATION OF THE DEATH PENALTY IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTOTHE CONSTITUTION ............. 99 A. RelevantFacts ........ 0.0... ee eee eee eee beeen eee eee 99 1. Elena Trujeque’s Testimony ...........0 0020 ce eee eee eee 100 2. Invocation of the Privilege .......... 00... cee eee eee eee 102 3. Guilt-Innocence Phase ........ 0.0... ccc eee eee 103 4. Penalty Phase .... 0.0... ccccece eee eee 104 B. Applicable Law ... 0... 0... ccceee 109 The Trial Court Erred in Allowing Charlie Trujeque to Make a Blanket Assertion of Privilege to Avoid Being Called as a Defense WitnesS .......... 0.000 eee ee eee eee eee eee es J12 1. Guilt Phase .. 0...eeee eee eee eee 113 2. Penalty Phase ......... 0... ccc eceee nes 116 iv TABLE OF CONTENTS Page Elena Trujeque Waived Her Fifth AmendmentPrivilege by Testifying at the Guilt-Innocence Phase of the Trial................ 119 The Trial Court’s Erroneous Ruling Allowing an Overbroad Invocation of the Privilege against Self- Incrimination was not Harmless Beyond a Reasonable Doubt where it Prevented the Jury from Hearing Evidence in Support of Appellant’s Guilt-Innocence Phase Defense and Excluded Important Mitigating Evidence from the Jury’s Consideration ................ 12] 1. Guilt-Innocence Phase ........... 0.0.0. c cece eeeneeeeue 121 2. Penalty Phase ... 00.0... ccc ccc cece eens 122 THE TRIAL COURT ERRED BY REFUSING TO GIVE APPELLANT’S REQUESTED INSTRUCTIONS ON IMPERFECT DEFENSE OF ANOTHER OR NECESSITY AS TO THE FACUNDO MURDER COUNT, IN VIOLATION OF THE FIFTH,SIXTH, EIGHTH AND~ FOURTEENTH AMENDMENTS.......0.0.00 0000 ccc cece eee e ee enes 126 A. Relevant Facts 0.0... 0... cece cece ee eee eee eeeeneae 126 B. Applicable Law ... 20...eccence nee nas 130 C. The Trial Court Erred inRefusing to Instruct on Unreasonable Defense of Others 0.2... cee ccc ca cece ee een eeeas 135 D. The Trial Court Erred in Refusing the Requested Instructions on the Defense of Necessity ..........0 0.00.00 ccc eee eee ene eee 139 E. The Denial of the Requested Instructions Violated Appellant’s Constitutional Rights and Was Not Harmless Beyond a Reasonable Doubt ...........0.0. 0000. c cece eee eee 142 THE TRIAL COURT ALSO ERREDIN REFUSING TO INSTRUCT ON NECESSITY OR IMPERFECT DEFENSE OF ANOTHER AS TO COUNTII, THE APODACA KILLING .........0.0.. 00000 cece eee 144 VII. VIII. TABLE OF CONTENTS Page THE TRIAL COURT ERRED BY IMPROPERLY PREVENTING THE DEFENSE FROM ELICITING EVIDENCE THAT APPELLANT’S COUSIN VICKI HAD BEEN KILLED BY AN ABUSIVE BOYFRIEND WHEN SUCH EVIDENCE WAS MATERIAL TO SHOW APPELLANT’S PERCEPTION OF THE DANGER FACUNDO POSED TO CHARLENE TRUJEQUE ...... 0.0... c eceees 147 A. Proceedings Below .......... 0. cece eeeteens 147 B. TheTrial Court Violated Appellant’s Right to Present a C. Defense by Excluding Evidence Relevant to Establish His State of Mind 0.0... . 0. ccceee149 The Error Was Highly Prejudicial and Requires Reversal ........... 151 THE TRIAL COURT IMPROPERLY ADMITTED THE EXPERT TESTIMONYOF A PATHOLOGIST WHO DID NOT PERFORM THE AUTOPSIES OF THE DECEDENTSIN THESE CASES,IN VIOLATION OF APPELLANT’S CONFRONTATION RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS............ 155 A. Relevant Facts ........ 0.0... 0. eee ee eeecece eee nena 155 B. Applicable Law ... 0.0...ceeee ene 159 C, Defense Counsel’s Failure to Object Does Not Waive this Claim as | Crawford Was an Unforeseeable Change in the Law That-must Be Applied Retroactively to Cases Pending on Direct Appeal ........... 163 Geier Cannot Be Reconciled with Melendez-Diaz and Bullcoming 0.0.6. eete 164 The Contents of the Autopsy Reports Were Testimonial Hearsay 2... eent eee 167 The Confrontation Clause Is Not Satisfied by the Testimony of a Surrogate... 6. teens 171 vi IX, TABLE OF CONTENTS Page G. The Error in Admitting Dr. Carpenter’s Testimony Was Not Harmless Beyond a Reasonable Doubt .......................00. 174 THE TRIAL COURT’S ERRONEOUS REFUSAL TO SEVER THE MURDER CHARGES FROM ANUNRELATED AND HIGHLY PREJUDICIAL ROBBERY CHARGE THAT OCCURRED MORE THAN A DECADE LATER DEPRIVED APPELLANTOF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND A FAIR AND RELIABLE PENALTY DETERMINATION ........... 0... .00000 ce eee 177 A. Relevant Facts ... 0.0... ccc cece cence nee neuevnnans 177 “B. Applicable Law 2... 0...enets 179 C. The Trial Court Abused its Discretion by Denying Appellant’s Motion to Sever Murder and Robbery Cases that Occurred More than a Decade Apart and Were Not Cross-Admissible, Resulting in a Highly Prejudicial Spill-Over Effect ................ 181 1, Cross-admissibility 2.0.0.0... ccc ce cee eee 182 2. Prejudicial Effect 2.0...ceceences 184 a. Inflammatory Evidence .............rn 184 b. Joinder OfA Weak Case With A Stronger-Case........ 184 C. The Charges Included A Capital Offense ............. 185 d. The Benefits Of Joinder Were Minimal .............. 187 3. Reversal Is Required 0.0... 2... ceceeens 188 D. The Trial Court’s Failure To Sever The Charges Made Appellant’s Trial Fundamentally Unfair ....................0.0.. 190 vil Xl. XII. TABLE OF CONTENTS Page THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE APPELLANT’S LETTER TO THE DISTRICT ATTORNEY GOADING HIM TO SEEK THE DEATH PENALTY AS THE LETTER WAS FAR MORE PREJUDICAL THAN PROBATIVE UNDER EVIDENCE CODE SECTION 352, MISLED THE JURY AND UNDERMINED THE RELIABILITY OF THE SENTENCING PROCESS ...............2.45. 191 A. Proceedings Below ......... 0... eeetenes 19] B. The Letter was not Admissible at theGuilt-Innocence Phase of the Trial . 0...eeeteen e eens 195 C. The Letter Was Not Admissible at thePenalty Phase ............... 201 THE TRIAL COURT HAD A SUA SPONTE DUTY TO INSTRUCT THE JURY ON ITS RESPONSIBILITY INDEPENDENTLY TO DECIDE THE APPROPRIATENESS OF THE PENALTY DESPITE APPELLANT’S STATED DESIRE FOR A DEATH SENTENCE ......... 210 THE TRIALCOURT ERRED BY ALLOWING THE PROSECUTION TO IMPEACH_APPELLANT WITH A CONSTITUTIONALLY INVALID 30-YEAR-OLD SECOND DEGREE MURDER CONVICTION. .......... 214 A. Relevant Facts 0.0.0.0... ccceeeee eee eee ees 214 B. The Improper Use of Appellant’s Invalid Second Degree Murder Conviction as Impeachment Requires Reversal of . the Convictions ......... 0.0.0: eee eee eeeeee eee 216 It Is Not Clear from this Record That Appellant’s Juvenile Misconduct Would Have Been Independently Admissible ........... 219 Even If the Prior Conviction Were Found to Be Valid,it Should Have Been Excluded under Section 352 ...............005. 222 Vili XII. XIV. TABLE OF CONTENTS Page THE TRIAL COURT IMPROPERLY PREVENTED THE DEFENSE FROM PRESENTING APPELLANT’S JUVENILE PROBATION REPORTS AND SCHOOL RECORDSAS EVIDENCEIN MITIGATION OF THE DEATH PENALTY IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE CONSTITUTION [FELED UNDER SEAL]. .......0.00 0000ccc ccc ccc eee eee 225 A. Relevant Facts .... 0.0.0. 0ccc eee eee e ee bebenens 226 1. Juvenile Probation Reports ..............0.00.0 cc eee eee 226 2. School Records .... 0.0.0... 000 0c cece ee eeeeeeeae235 B. The Probation Reports and School Records Contained Relevant Mitigating Evidence and WereErroneously Excluded .............. 237 1. The Excluded Portions of the Probation and School Records Should Have Been Admitted under Evidence-Code Section 1271 or 1280. ................ 238 2, The Probation and-School Reports Were Relevant and Reliabte Mitigating Evidence That Should Have Been Admitted Notwithstanding State Hearsay Rules ..........0.0 00000 cece cee eeeeeee 243 3. The Trial Court’s Erroneous Exclusion of Mitigating Evidence was not Harmless Beyond a Reasonable Doubt ...................0605,eee eee 246 THE TRIAL COURT’S REFUSAL TQ CONDUCT AN ADEQUATE HEARING TO RESOLVE DISPUTED ISSUES OF FACT CONCERNINGJUROR MISCONDUCT VICLATED APPELLANT’S RIGHT TO AN IMPARTIAL JURY AND TO A RELIABLE SENTENCING DETERMINATION ..........00 000: cece eee eee nes 251 A. Proceedings Below ... 0.2... 0... cece cee cece eee eect eneens 251 1x XVI. XVII. TABLE OF CONTENTS Page The Trial Court Abused its Discretion by Refusing to Conduct a Further Inquiry to Resolve Disputed Issues of Fact.................000. 254 THE PENALTY PHASE INSTRUCTION ON MORAL JUSTIFICATION IMPOSED A HIGHER STANDARD TO ESTABLISH THE MITIGATING CIRCUMSTANCE THAN IS REQUIRED FOR THE GUILT PHASE DEFENSE OF IMPERFECT DEFENSE OF ANOTHER AND THEREFORE PREVENTED THE JURY FROM CONSIDERING RELEVANT MITIGATING EVIDENCEIN THIS CASE,IN VIGLATION OF THE EIGHTH AMENDMENT.. 2.0.0.0... eee eee 259 THE TRIAL COURT’S REFUSAL TO GIVE LEGALLY ACCURATE - INSFRUCTIONS REGARDING THE SCOPE OF AGGRAVATING AND MITIGATING EVIDENCE AND THE JURORS’ SENTENCING DISCRETION VIOLATED STATE LAW AND APPELLANT'S RIGHT TO A FAIR AND RELIABLE PENALTY DETERMINATION ........... 265 A. Applicable Law-on Jury Instructions ... Leccecece eee enees 266 B. The Trial CourtErred by Refusing to Give a Legally Accurate CO Instruction Clarifying the Definition of “Mitigating” Circumstances ... 267 The Trial Court Erred by Refusing to Give Legally Accurate Instructions Concerning the Limitations on Aggravating Circumstances .... 0... ceceeee teen n eens 271 The Trial Court-Erred by Refusing to Give Legally Accurate Instructions Concerning the Weighing Process ..............0.005- 273 The Trial Court Erred by Refusing to Accurately Instruct the Jury that it Could Consider Sympathy and Mercy in Deciding Whether to Impose a Death Sentence ... 0.0.2... eee eee 276 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION .... 0.20.2eeeee 278 TABLE OF CONTENTS Page Penal Code Section 190.2 Is Impermissibly Broad ................. 278 The Broad Application of Section 190.3(a) Violated Appellant’s Constitutional Rights .......... 0.00.0... c ee eee eee 279 The Death Penalty Statute and Accompanying Jury Instructions Fail to Set Forth the Appropriate Burden of Proof ....... 281 1. Appellant’s Death Sentence Is Unconstitutional Because It Is Not Premised on Findings Made Beyond a Reasonable Doubt ...... eeeeeee Some Burden of Proof Is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof .... 0.0.0... c cc cee cece eee ceeceeees Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings ...........0.. 0.0.0. cece eee ee a. Agegravating Factors 2.00.0... 0... ec eee ee b. Unadjudicated Criminal Activity................... The Instructions Caused the Penalty Determination to Turn en an Impermissibly Vague and Ambiguous Standard .... TheInstructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment ................. 0000 cece The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole .... 0.0.0... cee eee es Xi . 281 . 283 . 284 . 284 . 285 287 . 287 . 288 TABLE OF CONTENTS Page 7. The Instructions Violated the Sixth, Eighth and Fourteenth Amendments by Failing to Inform the Jury Regarding the Standard of Proof and Lack ofNeed for Unanimity as to Mitigating Circumstances .......... 0... eee eee eee 289 8. The Penalty Jury Should Be Instructed on the Presumption Of Life 6.c teen enn ee 290 D. Failing to Require That the Jury Make Written Findings Violates Appellant’s Right to Meaningful AppellateReview ......... 291 E, The Instructions te-the Jury on Mitigating and Aggravating Factors Violated Appellant’s ConstitutionalRights ................ 292 1. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors... 2... 2.ceeees 292 2. The Failure to Delete Inapplicable Sentencing Factors ......... 292 3. The Failure to Instruct. That Statutory Mitigating Factors Were Relevant Solely asPotential Mitigators 2.2... 20... eeeceeeens 293 F. The ProhibitionAgainst Inter-case Proportionality Review Guarantees Arbitrary and-Disproportionate Imposition of the Death Penalty 2... 0...ccceee teenies 293 G. The California Capital Sentencing Scheme Violates the Equal Protection Clause ...... 0.0... ccc eet cette eee eens 294 H. California’s Use of the Death Penalty as a Regular Form of PunishmentFalls Short of International Norms ................... 295 XVII. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT...ceeens 296 Xii TABLE OF CONTENTS Page XIX. THE 25 YEARS TO LIFE SENTENCE FOR COUNTII REFLECTED IN THE ABSTRACT OF JUDGMENT MUST BE CORRECTED ON REMAND TO REFLECT THE LEGALLY AUTHORIZED SENTENCE OF 15 YEARS TOLIFE 2.1...cccece ens 300 CONCLUSION 2.0...eecteen e teen eens 304 CERTIFICATE OF COUNSEL ...... 0...cccnee neces 305 X1ll TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abdul-Kabir v. Quarterman (2007) 550 U.S. 233 2.eee247, 248, 249, 250, 270 Apprendi v. New Jersey (2000) 530 U.S. 466 2...eee281, 282, 286 Atkins v. Virginia (2002) 536 U.S. 304.............. Lecce eee teen eee eee 207 Ballew-v. Georgia . (1978) 435 U.S. 223 2.cceet eee ene 284 Barker v. Estelle (9th Cir. 1989) 913 F.2d 1433 2...eee 50, 52 Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073... eee 179, 181, 183, 184, 190 Beck v.Alabama (1980) 447 US. 62520eeeeee 181, 190, 207, 246 Benton v. Maryland (1969) 395 US. 7842ceee e eens 54 Berger v. United States . (1935) 295 U.S. 78 20.eeecece eee eens 246 Blakely v. Washington (2004) 542 ULS. 296 2.ceeens 281, 282, 286 Blystone v. Pennsylvania (1990) 494 U.S. 299 2.cenceeens 287 Boyde v. California (1990) 494 U.S. 370...eee260, 264, 270, 273, 276, 288 XIV TABLE OF AUTHORITIES Page(s) Breed v. Jones (1975) 421 U.S. 519...eee 48, 49, 50, 51, 52, 55 Brewer v. Quarterman (2007) 550 U.S. 286, 295-2 2...ccc cece ee 277, 289 Brown v. Wainwright (Sth Cir. 1982) 665 F.2d 607 «0...cece95, 96 Bullcoming v. New Mexico (2011).US.131 S.Ct. 2705... 20, 167-176 passim, 240 Calder v. Bull (1798) 3 Dall. 386 2...cccccc cee e eee anes 68 Caldwell v. Mississippi (1985) 472 US. 320 ccc ccc cee renee ee eaes 213 California v. Brown (1987) 479 U.S. 538 00.2...eee cece ee eee beeen 276, 277 California-v. Ramos (1983) 463 US. 992 01ccccee eee e eens 275 California v. Trombetta (1984) 467 U.S.479 20.cece eee e eee ae 109, 131, 149 Carella v. California (1989) 491 US. 263 20cececence eeeeeeeeas 131 Carmell v. Texas (2000) 529 U.S. 513. 2cece cc cece eee eee eeanes 67 Carter v. Kentucky (1981) 450 US. 28800ccccece eens 282 XV TABLE OF AUTHORITIES Page(s) Chambers v. Mississippi (1973) 410 U.S. 2842.eeeeee 149, 244, 296 Chapmanv. California (1967) 386 U.S. 18 0...ceeeee eens passim Conde v. Henry (9th Cir. 1999) 198 F.3d 734 2...eeeee 132 Coolv. United States (1972) 409 US. 1002.eeeeee eens 149 Crane v. Kentucky (1986)-476 U.S. 683 20.eeeeee ees passim Crawford v. Washington (2004) 541 ULS. 36.0.0... eee eee eee 159-176 passim, 240 Cunningham v. California (2007) 549 U.S. 270 2...ence eee e nee es 286 Cupp v. Naughten (1973) 414 U.S. 141 0.cetteeens 132 Davis v. Washington (2006) 547 U.S. 8132.164, 165 Delaware v. Van Arsdall (1986) 475 U.S. 673 2.0.tenes 121, 153 Delo v. Lashley (1983) 507 U.S.2 2...eeeeee eens 290 Donnelly v. DeChristoforo (1974) 416 U.S. 6372.eens296 XVI TABLE OF AUTHORITIES Page(s) Duncan v. Louisiana (1968) 391 U.S. 145 10cecece ees 131, 254 Eddings v. Oklahoma (1982) 455 U.S. 104...ceeee ene nes passim ' Estelle v. McGuire (1991) 502 US. 62 0... cece eee e cece eee ee ees . passim Estelle v. Williams (1976) 425 US. 501occcece cee ees 131, 290 Faretta v. California (1975) 422 U.S. 806 2... ccc cece eee eae 90, 93, 94, 95, 97 Featherstone v. Estelle (9th Cir.1991) 948 F.2d 1497 ......... beeen ee eee ees 181, 190 Furman v. Georgia (1972) 408 U.S. 238 0.cccece eee nenennees 278 Gardnerv. Florida (1977) 430 U.S. 349 20ceeeee 203, 207, 246, 267 General Dynamics Corp. v. Selb Mfg. Co. (8th Cir.1973) 481 F.2d 1204 .....eee ee eee e eee teens 11T Giles v. California (2008) 554 U.S. 353 1.ccc cece eee eees 167, 168 Godfrey v. Georgia (1980) 446 US. 420 2.ccccence eee neees 203 Gray v. Mississippi (1987) 481 U.S. 648 2.0.0.2...eeeee en eee eens 190 XVii TABLE OF AUTHORITIES Page(s) Green v. Georgia (1979) 442 U.S.95 200ceeees 28, 229, 237, 244 Gregg v. Georgia (1976) 428 U.S. 153 26cece276, 291 Gregory v. United States (D.C. Cir.1966) 369 F.2d 185 2...ees181 Harmelin v. Michigan (1991) 501 U.S. 9572.cence nees 285 Hitchcock v. Dugger~ (1987) 481 U.S. 38300.eneeenes 247 Holmes v. South Carolina (2006) 547 U.S. 31920.ene109, 131, 149 Hicks v. Oklahoma (1980) 447 U.S. 343 20eeeee 85, 190, 201, 283, 288 Hitchcock v. Dugger (1987) 481 ULS. 393 20cecepassim Illinois v. Allen (1970) 397 U.S. 337 00.eesre90 INS v. St. Cyr (2001) 533 U.S. 289 2.cetteteens 66 Jackson v. Denno (1964) 378 U.S. 36820teenies 131 Jencks v. United States (1957) 353 U.S. 657 0.ccctenes 245, 246 XVill TABLE OF AUTHORITIES Page(s) Johnson v. California (2005) 545 U.S. 162.0ceeeee nes 190, 255 Johnson v. Mississippi (1988) 486 U.S. 578.0...eee ee 53, 56, 209, 267, 286 Kelly v. South Carolina (2002) 534 U.S. 24625 20.cece eee eee eeeees 212 Lego v. Twomey . (1972) 404 U.S.477........Beeee eee eee e eens 133 Lockett v. Ohio (1978) 438 US. 586 2...cece eee eee eeen passim Lucero v. Kerby (10th Cir. 1998) 133 F.3d 1299 2...eeeeee 184 Martinez v. Court ofAppeal ofCalifornia Fourth Appellate Dist. (2000) 528 U.S. 152 .cccece cence ee eeeeas 90 Mathews v. United States (1988) 485 U.S.582.cccece cen nes 134, 139 Maynard v. Cartwright (1988) 486 U.S. 35620cccee eee eens 280, 287 McKaskle v. Wiggins (1983) 465 US. 168 000ccccece eaeees 95 McCoy v. Commissioner ofInternal Revenue (9th Cir. 1983) 696 F.2d 1234 0...eee 110, 112 McKoy v. North Carolina (1990) 494 U.S. 433 00cece eee eee eees passim XIX TABLE OF AUTHORITIES Page(s) Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 129 S.Ct. 2527... 2... 2... 161-176 passim, 240 Menna v. New York (1975) 423 US. 61 20.centeennas 52 Michigan v. Bryant (2011) US. 131 S.Ct. 1143oeeee 164 Mills v. Maryland (1988) 486 U.S. 367 ..........ee260, 270, 289, 290, 292 Mitchell v. United States (1999) 526 U.S. 314 0.0...neceeene 120 Monge v. California (1998) 524 US. 721 0.ceeeeenn eens 285 Myers v. YIst (9th Cir. 1990) 897 F.2d 417 2...eeees 285 North River Ins. Co., Inc. v. Stefanou (4th Cir. 1987) 831 F.2d 484 2.0...eee 111, 118 Ohio v. Roberts (1980) 448 U.S. 56........eee eee eee eee tenet e tenes 160 Parle v. Runnells (9th Cir. 2007) 505 F.3d 922 ©...2.ccees 296 Pennsylvania v. Ritchie (1987) 480 U.S.39 .. 0.eceeeen n ees 149 Pointer v. Texas (1965) 380 U.S. 400...ceeeens 159 TABLE OF AUTHORITIES Page(s) Ring v. Arizona (2002) 536 U.S. 5840.ee281, 284, 286 Rogers v. United States (1951) 340 ULS. 36700ccceee 110, 111, 119, 120 Roper v. Simmons (2005) 543 U.S. 551 0.ccccence 207, 276, 295 SV. v. Sherwood Sch. Dist. (9th Cir. 2001) 254 F.3d 877) 20...cccne ee ee 262 Sandstrom v. Montana (1979) 442 U.S. 510cccccc cence eee eneees 131 Sears v. Upton (2010)US.130 S.Ct. 32592.eee, 244 Simmons v. South Carolina (1994) 512 U.S. 154......0..0....0.0004.eee eee eee ee eens 152 Skipper v. South Carolina (1986) 476 U.S. 1 occcece cence ence eees 260 Smith v. Texas (2004) 543 U.S.37 22.eee eere 123, 124, 237, 248 Stevenson v. United States (1896) 162 U.S.313 22.ccccece een eeees 134 Stogner v. California (2003) 539 U.S. 607 206cece cece cee e eee neneene 68 Stringer v. Black (1992) 503 U.S. 222 00.ccc ccc tect eeeees 293 XXi TABLE OF AUTHORITIES Page(s) Swisher v. Brady (1978) 438 U.S. 2042.ceeens 50-51 Taylor v. Withrow (6th Cir. 2002) 288 F.3d 846 02...eeees 131-132 Tennard v. Dretke (2004) 542 U.S. 274 0... eee eeeee eeeeae 109, 122, 123, 237 Trop v. Dulles (1958) 356 U.S. 862.eeeeee eee eens 295 Tuilaepa v. California (1994) 512 U.S. 96720eeeeee eens 280 Turner v. Louisiana (1965)379 ULS. 4662.eee254 United States v. Allee (Ist Cir. 1989) 888. F.2d 208 2.0...eeeeeeee en eee 111 United States v. Ball (1896) 163 U.S. 662 2.2ceeee eens 52 United States v. Drollinger (9th Cir. 1996) 80 F.3d 389 0.0...ees... 110 United States v. Fernandez (4th Cir. 1990) 913 F.2d 148 2...eee246 United States v. Foutz (4th Cir. 1976) 540 F.2d 733 2...eeeee ee 187 United States v. Goldson (2d Cir. 1992) 954 F.2d 51...eeeens 134, 139 XX TABLE OF AUTHORITIES Page(s) United States v. Goodwin (5th Cir. 1980) 625 F.2d 693 2.0... eee 110-117 passim United States v. Highgate (6th Cir. 2008) 521 F.3d 590 0...eeeee 110,111,117 United States v. Hoffman (1951) 341 US. 47920,wee eee eee eee ees 110, 111, 112 United States v. Jorn (1971) 400 U.S. 470 2.0cecen tenn ee naes 54 United States v. Lane (1986) 474 US. 438 000ceeeee nen eee eee 181 United States v. Lewis (9th Cir.1986) 787 F.2d 1318 2...cece eee 183 United States v. Malnik (5th Cir. 1974) 489 F.2d 682 ....... ce eee c eee eee e ee eeneanes 111 UnitedStates v. Marion (1971) 404U.S. 307 20.ceeen ene eaeas 245 United States v. Moore (9th Cir. 1982) 682 F.2d 853 26...110, 117 United States v. Moore (D.C. Cir. 2011) 651 F.3d 302.cence 170 United States v. Neff (9th Cir. 1980) 615 F.2d 1235 2...eee 110, 112, 117 United States v. Pierce (9th Cir. 1977) 561 F.2d 735 2...ccceee eee 111 Xxiil TABLE OF AUTHORITIES Page(s) United States v. Sanders (4th Cir. 1992) 964 F.2d 295) 2...es217 United States v. Sotelo-Murillo (9th Cir. 1989) 887 F.2d 176 2...ceeeee ee 134 United States v. Walker (N.D.N.Y. 1995) 910 F. Supp. 837 2.0...eee 202 Vasquez v. Hillery (1986) 474 US. 254ooeens278 Wardius v. Oregon (1973) 442U.S.4702.cetteee nee 289 Washington v. Texas . (1967) 388 US. 14.0...eee eee ... 109, 149, 152 Webb v. Fexas (1972) 409 U.S: 95 2...eeecece ee eaee 149 Wellons v. Hall (2010) SUS.130 S.Ct. 7272.eee, 255, 257 Wiggins v. Smith (2003) 539 U.S. 510 2.2.2... ee eee 109, 124, 205, 248, 250 Williams v. Taylor (2000) 529 U.S.362 2...0.eee 110, 124, 248 Woodson v. North Carolina (1976) 428 U.S. 290 2...eee 246, 267, 284, 287, 289 Zant v. Stephens (1983) 462 U.S. 862 ©...ceete 279, 288 XXIV TABLE OF AUTHORITIES Page(s) Zicarelli v. New Jersey State Comm’n ofInvestigation (1972) 406 U.S. 472 00.ccccece neces 110, 118 STATE CASES Alcala v. Superior Court (2008) 43 Cal.4th 1205 20...cece eee ee 180 Alch v. Superior Court (2004) 122 Cal.App.4th 339 20...ccceee es 66 Barnett v. Superior Court (2010) 50 Cal.4th 890 2.0...cece eee nae 202 Belton v. Superior Court (1993) 19 Cal.App.4th 1279 20...eeeee 179, 182 Bishop v. City ofSan Jose (1969) 1 Cal.3d56 2...cececen ees263 Bodner v. Superior Court (1996) 42 Cal.App.4th 1801 ......... 0.00. eee ee 70, 73, 74 Brazell vy. Superior Court (1986) 187 Cal.App.3d 795 2.0... ccc cece eee eens 71, 74 Burris v. Superior Court (2005) 34 Cal.4th 1012 22...cee ene eee 70, 78 Coleman vy. Superior Court (1981) 116 CalApp.3d 129 22...cece eee 182 Derr v. State (Md. Ct. App. 2011) 29 A.3d 533 2.0...eee eae 170 Dixon v. Superior Court (2009) 170 Cal.App.4th 1271 2...ceeees 169 XXV TABLE OF AUTHORITIES Page(s) Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 2...eeeene 66 Ferrel v. Superior Court (1978) 20 Cal.3d 888 2...ceeeee tenes 91, 94 Gherman v. Colburn (1977) 72 Cal.App.3d 544 2...eeee 151 In re Bateman (1928) 94 Cal.App. 639 20...neeeens 303 In re Bryan (1976) 16 Cal.3d 782 2.0...eeteee 48 In re Christian S. (1994) 7 Cal.4th 768 20...ceneces 129 In re Hubbard (1964) 62 Cal.2d 119 1.2.2... 0 eeeoe eee ee eee ees 262 In re James H. (1981) 121 Cal.App.3d 268 2.0...ceeees 241 In re Lucas (2004) 33 Cal.4th 682 2.0...ceene 205 In.re Marriage ofSachs (2002) 95 Cal.App.4th 1144 2...eeeeee 111 Inre Perrone C. (1979) 26 Cal.3d 49 2...eeeeee 51 In re Ricky B. (1978) 82 Cal.App.3d 106... 0... eeeeee eee 220 XXV1 TABLE OF AUTHORITIES Page(s) In re Smith (2008) 42 Cal.4th 1251 20kceceeee 66, 262 In re Williams (1985) 164 CalApp.3d 979 0.0... ccc cee ene 70, 256 Jesse W. v. Superior Court (1979) 26 Cal.3d 41...0eeeeee eee 5Q, 51, 55 Kowis v. Howard (1992) 3 Cal.4th 888 2...cece eee ee eens 64 Macfarlane v. Dept. Alcoholic Bev. Control (1958) 51 Cal.2d 84 0.ccccece eens 216 Martin v. Bd. ofElection Com'rs ofCity & County ofSan Francisco (1899) 126 Cal. 404 2.cccce eee ens 263 Miller v. Superior Court (2002) 101 Cal.App.4th 728 2.0...ccc ce ee eee 81, 83 Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 2...ccceee eee es 66 People v. Abilez (2007) 41 Cal.4th 472 2.cececece eee 223 People v. Alfaro (2007) 41 Cal.4th 1277 2...cece cece eee ee 208 People v. Allen (1986) 42 Cal.3d 1222 2...ccccece eens 277 People v. Anderson (2001) 25 Cal.4th 543 2...eee275, 281, 282, 286 XXVii TABLE OF AUTHORITIES Page(s) People v. Anderson (2002) 28 Cal.4th 767 2...ceeee eee 140 People v. Arias (1996) 13 Cal.4th 92 ........... beeen eee 182, 190, 283, 284, 288, 291 People v. Avila (2006) 38 Cal.4th 491 0.eee255, 292 People v. Bacigalupo (1993) 6 Cal.4th 457 1... eee eeene288 People v. Banks (1959) 53 Cal.2d 370. 20... cee eee eee beensLecce 216 People v. Barnett (1998) 17 Cal.4th 1044 22.eee256 People v. Barton (1995) 12 Cal.4th 186 2.2...eee 132, 133, 134, 139 People v. Beach (1987) 194 Cal.App.3d 955 2...ecceeens 140 People v. Beagle (1972) 6 Cal.3d 441 2.0.eceee eens 218 People v. Bean (1988) 46 Cal.3d 919 2...eeeees 179, 185, 187 People v. Beeler (1995) 9 Cal.4th 953 0... eee. 161-168 passim, 239, 240, 242 People v. Bell (2007) 40 Cal.4th 582 2...eens205 XXVIli TABLE OF AUTHORITIES Page(s) People v. Birks (1998) 19 Cal.4th 108 2...ceecee eee 133 People v. Blair (2005) 36 Cal.4th 686 2.0.0.2... ee eee eee 90, 98, 280, 282 People v. Blakeley (2000) 23 Cal.4th 82 0...ccccece eens 134 People v. Blanco — (1992) 10 Cal.App.4th 1167 22...eee54, 163 People v. Bloom (1989) 48 Cal.3d 1194 20.ccceee 91, 98 People v. Bolin (1998) 18 Cal.4th 297 2.0ceceeens 196 People v. Bonilla (2007) 41 Cai4th 313 0.cece cee eee 203 People v. Boyd (1985) 38 Cal.3d 762. 2...eee202, 203, 204, 271 People v. Bradford (1997) 15 Cal.4th 1229 ........eeeee eee eee eens 90-9] People v. Breaux (1991) 1 Cal.4th 281. 20.ceceeens 287 People v. Breverman (1998) 19 Cal.4th 142 2.0.0... 132, 133, 134, 139, 145, 212 People v. Brown (1988) 46 Cal.3d 432 2...cee205, 213, 296 XX1X TABLE OF AUTHORITIES Page(s) People v. Brown (2004) 33 Cal.4th 382 22.ceeeee 67 People v. Brown | (2004) 34 Cal.4th 382 22.eeetenes 280 People v. Burgener (1986) 41 Cal.3d 505 22...eee ee eee 208, 255, 256,258 People v. Burns (1987) 189Cal.App.3d 734 .............0.. ace eee eee nes 222 People v. Burton (1989) 48 Cal.3d 843 .....cece e teen eee eee ee eens 52 People v. Butler (2009) 47 Cal.4th 814. 2...eee-86-98 passim People v. Campos (1995) 32 Cal.App.4th 304 ............... elec eee eee nee 24) People v. Carson (2005) 35 Cal4th 1...ceeeee eee ee 91 People v. Castro (1985) 38 Cal.3d 301 2...eeeee eee 218, 222 People v. Ceja- (1994).26 Cal.App.4th 78 2...eee133 People v. Chadd (1981) 28 Cal:3d 739 2...ceeeee teens 208 People v. Clair (1992) 2 Cal.4th 629 2...eeeeens 223 TABLE OF AUTHORITIES Page(s) People v. Clark (1992) 3 Cal4th41...cccence eee 161 People v. Coddington (2000) 23 Cal.4th 529 oo.cece cee eee eee 273 Peoplev. Coffey (1967) 67 Cal.2d 204 20...eeeeee eee 216, 217, 221 People v. Coffman (2004) 34 Cal4th boo.cecerenee cease 140 People v. Coleman (1985) 38 Cal.3d 69 0.2... eeeeee eens 196, 197 People v. Collins (2010) 49 Cal4th 175 occcee eee 202, 204 People v. Condley (1977) 69 Cal.App.3d 999 200...cece eee.... 140 People v. Cook (2006) 39 Cal.4th 566 2.0...eeeeee eee 291, 292, 295 People v. Cowan (2010)50 Cal.4th 401 22.0.eeeee eee 196, 255 People v. Crayton (2002) 28 Cal.4th 346 2...cece eee eeees 211 People v. Crittenden (1994) 9 Cal.4th 83 2.ccceee eee 202 People v. Cummings (1993) 4 Cal.4th 1233. 000. eee ec cece cece eeeeeceeees 179, 181 TABLE OF AUTHORITIES Page(s) People v. Cunningham (2001) 25 Cal.4th 926 2.0...eece nee 133, 303 People v. D'Arcy (2010) 48 Cal.4th 257 2...ccctees 203 People v. Davenport (1985) 41 Cal.3d 247 2...eeeee 267, 272, 293 People v. Davis (1965) 63 Cal.2d 648 2...ceeteens 150 People v. Deere (1985) 41 Cal.3d 353 2...eetee 208 People v. Diaz (1984) 152°Cal.App.3d 926 .............. ence eee ees 255 People v.-Doelin (2009) 45 Cal4th 390 2.0...ceene 133 People v. Duncan (1991).53 Cal.30955 0.eceee 277, 288 People v. Dungo (2009) 176 Cal.App.4th 1388 2...eeeee 162 People v. Dykes (2009) 46 Cal.4th 731 .........Lecce een eee e eee ees 255 People v. Easley (1983) 34 Cal.3d 858 2...ec eeees Joc wees 274 People v. Edelbacher (1989) 47 Cal.3d 983 2...eeeee 272, 275, 278 XXXil TABLE OF AUTHORITIES Page(s) People v. Edwards (1991) 54 Cal.3d 787 occccc ee ee eee eee 267 People v. Elize (1999) 71 Cal.App.4th 605 2.0.2.0...eee 134, 139, 145 People v. Elliot (2005) 37 Cal.4th 4530cece cece eee eae 132 People. Encerti (1982) 130 CalApp.3d 791 2...ccc cece eee eee eee ee 76 People v. Escobar (1992) 3 Cal.4th 740 2...cece cee cence neeees 127 People v. Ewoldt (1994) 7 Cal.4th 380 2...ccc ce ence eee eeee 196 People v. Fairbank €1997) 16 Cal.4th 1223 .......wee eee eee eee ees wee es 281 People v. Fauber (1992) 2 Cal.4th 792 2.0cccce eee eee eees 291 People v. Fierro (1991) 1 Cal.4th 173 2.ccccece cece ee es 294 People v. Flannel (1979) 25-Cal.3d 668 0.0...02cee 132, 133, 135, 136 People v. French (2008) 43 Cal.4th 36 2... cece cee eee eeeeees54 People v. Galloway . (1927) 202 Cal. 81 2.cece cece eee e eee eees 255 XXX TABLE OF AUTHORITIES Page(s) People v. Gardeley (1996) 14 Cal.4th 605 2...ceee eee 241, 243 People v. Geier (2007) 41 Cal.4th 555 2... eee eee eee 162, 164, 165, 168, 179 People v. Geiger (1984) 35 Cal.3d 510 2...eeeee 133 People v. Ghent (1987) 43 Cal.3d 739 2... cccccceee teen ees 295 People v. Gonzalez (1990) 51 Cal-3d 1179 2...eeee ees 202-204 People v. Gordon (1990) 50 Cal.3d 1223 2...cccee eee 267 People v. Grant (1999)20 Cal.4th 150 2.0ete67 People v. Griffin (2004) 33 Cal.4th 536 2.0...ceteens 282 People v. Gurule (2002) 28 Cal.4th 557 2...eeeeee 218, 267 People v. Gutierrez (2009) 177 Cal.App.4th 654 2.0...eee162, 180 People v. Guzman (1988) 45 Cal.3d 915 2... eeeee eee 208-213 passim People v. Hamlin (2009) 170 Cal.App.4th 1412 2.2...eeee 255 XXXIV TABLE OF AUTHORITIES Page(s) People v. Hamilton (1948) 33 Cal.2d45 ........be cece eee ee teen eens 216 People v. Hamilton (1963) 60 Cal.2d 105 2...ccc cece eee nnees 205 People v. Hamilton (1989) 48 Cal.3d 1142 20...cccce eee ees 293 People v. Hardy (1992) 2 Cal.4th 86 2.0.ccccence ee eens 256 People v. Harris (1989) 47 Cal.3d 1047 20...ccc cece cece ee eees 196 People v. Hartsell ~ (1973) 34 CalApp.3d 8 ............0.. eee e eee eee eee ene 302 People v. Hathcock (1971) 17 Cal.App.3d 646 2.0...ccccece cece eee 120 People v. Hawthorne (1992) 4 Cal.4th43cece ee cence eae 281 People v. Hawthorne (2009) 46 Cal.4th 67 2...ccccece e ne eeee 271 People v. Hayes (1989) 49 Cal.3d 1260 ... 2...ccccee eee ees 66 People v. Heath (1989) 207 Cal.App.3d 892 .. 0...0. 139-140, 141 People v. Hedgecock (1990) 51 Cal.3d 395 2.0...eee255, 256, 257, 258 XXXV TABLE OF AUTHORITIES Page(s) People v. Hernandez (2003) 111 Cal.App.4th 582 2.eeeee 134 People v. Hill (1998) 17 Cal.4th 800 2.0...eeeeee 296 People v. Hillhouse (2002) 27 Cal.4th 469 2...eeeeee 293 People v. Holt (1984) 37 Cal.3d 436 2...ceene ete 296 People v. Horton (1996) 11 Cal.4th 1068 ................0..0004. 47, 53, 54, 55-56, 215 People v. Howard (2010) 53 Cal.4th 15 2...eeeees 196 People v. Huff (1967) 255 CalApp.2d 443 2...eens256 People v. Jablonski (2006) 37 Cal.4th 774 0... eeececeeee eee 203- People v. Jackson- (1986) 177 Cal.App.3d 708 0.0... 0.eeeee ees 220 People v. Jennings (1991) 53 Cal.3d 334 2...eceeeee teas 163 People v. Johnson (2004) 119 Cal.App.4th 976 2.0...eeeees 54 People v. Johnson (2004) 121 Cal.App.4th 1409 2...eeeeee 163 XXXVI TABLE OF AUTHORITIES Page(s) People v. Jones (2011) 51 Cal.4th 346 2...ceceeee 64 People v. Kane (1946) 27 Cal.2d 693 2...cececece ee ean 266 People v. Karaman (1992) 4 Cal.4th 335 ooeeeeee ees 302 People v. Keenan (1988) 46 Cal.3d 478 20.ccceee eee ee 255 People v. Kelly (1980) 113 CalApp.3d 1005 ........eee eee eee eee 289 People v. Kennedy (2005) 36 Cal.4th 595 2...eeeeee ee ees 280 People v. Kenner (1990) 223 Cal.App.3d 56 2.0... cece eee eee 95, 96, 97 People v. Kipp (2001) 26 Cal.4th 1100 2.0...cece ee eee 196, 198 People v. Koontz (2002) 27 Cal.4th 1041 2.0...aesee ees 90 People v. Lang (1989) 49 Cal.3d 9912ceceeens 262 People v. Lanphear (1984) 36 Cal.3d 163 2...cece eee e eee nas 276 People v. Lee (1994) 28 Cal.App.4th 1724 22...cece eens 220 XXXVil TABLE OF AUTHORITIES Page(s) People v. Lee (2011) 51 Cal.4th 620 2...LLeee269 People v. Lenart (2004) 32 Cal.4th 1107 1.0...eeeee ees 283, 284 People v. Lewis (2001) 25 Cal.4th 610 2...eee132 People v. Little (1993) 19 Cal.App.4th 449 2.0eee303- People v. Livaditis (1992) 2 Cal.4th 759 2.eetees 273 People v. Lomax . (2010) 49 Cal.4th 530 2...eetees 255 People v. Lopez (2009) 177 Cal.App.4th 202 2.cee162 People v. Lovercamp (1974)-43 Cal.App.3d 823 0.0...eeeee ees 139, 142 People v. Lowery (2011) 52 Cal.4th 419 2.ceceeee 66 People v. Lucky (1988) 45 Cal.3d 259 2...eetenes 185, 189 People v. Luna (1983) 140 Cal.App.3d 788 2.2... .eeeeee 76 People v. Mackey (1985) 176 Cal.App.3d 177 2...eee66 XXXVili TABLE OF AUTHORITIES Page(s) People v. Malone (1988) 47 Cal.3d 1 oececeeee eee een 203 People v. Manriquez (2005) 37 Cal.4th 547 0...ccc cee cece eee eeen 294 People v. Marchand (2002) 98 Cal.App.4th 1056 2.0...ccceee 54 People v. Marquez (1992) 1 Cal.4th553ceceeens 179, 182 People v. Marshall (1997) 15 Cal4thbo.ccceee.97 People v. Marshall (1996) 13 Cal.4th 799 20.cece cee eee eee 133 People v.. Martin (2005) 127 Cal.App.4th970 ...............002.meee eee ee 240 People v. Martinez (2010) 47 Cal4th 911 2.ccccece cee eee 255 People v. Mason (1991) 52 Cal.3d 909-0.ccceee eee eee 184 People v. Mason (2006) 140 Cal-App.4th1190 ....... 00...eee 81, 83 People v. Massey (2000) 79 Cal.App.4th 204 2...ccceee ae 81, 83 People v. Mattson (1990) 50 Cal.3d 826 20...cece cece neces 163 XXX1X TABLE OF AUTHORITIES Page(s) People v. Maury (2003) 30 Cal.4th 342 2...ceeee eas 196 People v. Mayo (1961) 194 Cal.App.2d 527 2...eceee 266 People v.McKenzie (1983) 34 Cal.3d 616 20...ccceee tenes 211 People v. McKinnon (2011) 52 Cal.4th 610 2.2... eee eee. 179, 180, 181, 190, 271 People v. Medina (1995) 11 Cal.4th 694 02...285 People v. Melton (4988) 44 Cal.3d713 2...ceeeens 271 People v. Memro (1995) 11 Cal.4th 796 .....kee cent eee eee nee 179, 182 People. Mendoza (2071) 52 Cal.4th 1056 2.0...eeeeee 196 People v. Michaels (2002) 28 Cal.4th 486 2.0...eceee 135, 136, 138 People v. Mickey (1991) 54 Cal.3d 612 2...ceeeens 260 People v. Miller (1994) 25 Cal.App.4th 913 2...eee240, 242 People v. Mincey (1992) 2 Cal.4th 408 2...ceeeee ee 133 xl TABLE OF AUTHORITIES Page(s) People v. Minifie (1996) 13 Cal.4th 1055...ceeee eee 149, 150 People v. Mitchell (2001) 26 Cal4th 181 2...ccccee ee eee 301 People v. Monterroso (2004) 34 Cal.4th 743 2.ccc ccc eee eens 271 People v. Montiel (1993) 5 Cal.4th 877 occeee cece ee ences 243 People v. Moon (2005) 37 Cal4th) oo... eee eee weet eee eee 275 People v. Moore (1954) 43 Cal.2d 517 2.ccccee eee eens 289 People v. Moore (2011}-51 Cal.4th 1104 2.2... 0.0.00... 0.00,eee cee ne eee eee 92 People -v. Morse (1964) 60 Cal.2d 631 2...ceceeee eee 205 People v. Murtishaw (1981) 29 Cal.3d 733 20...cece cece eee ene 203 People v. Murtishaw (1989) (Murtishaw II) 48 Cal.3d 1001 ..................0000.. 262, 274 People v. Murtishaw (2011) (Murtishaw ID 51 Cal.4th 574 2.0.0.0... ee eee. 262 People v. Ochoa (1998) 19 Cal.4th 3530cece cece eee eee 180 xh TABLE OF AUTHORITIES Page(s) People v. Osband (1996) 13 Cal.4th 622 2.ceeee 182 People v. Partida (2005) 37 Cal.4th 428 2...ceeeee 201 People v. Patrick (1981) 126 CalApp.3d 952 2...Lceee 141 People v. Peters (1978) 21 Cal.3d 749 0.0...eetenes 71 People v. Pitts (1990) 223-Cal.App.3d 1547 2... oneceas 223 People v. Pollack (2005) 32 Cal.4th 1153 2...eee202 People v. Ponce (1996) 44 Cal.App. 4th 1380 22...eee... 212 People v. Prater (1977) 71 Cal.App.3d695 2.0...ceeee 302 People v. Price (1986) 184 CalApp.3d 1405 2.0...eee.. 303 People v. Price (1991) 1 Cal.4th 324 2...ceeeee 180 People v. Prieto (2003) 30 Cal.4th 226 2.0... ceeeee eee 282, 284, 285 | People v. Prince (2007) 40 Cal.4th 1179 2...ceceene 132 xlii TABLE OF AUTHORITIES Page(s) People v. Ramirez (1987) 189 Cal.App.3d 603 2.2.0.2...eceee cence 54 People v. Ramirez (2007) 153 Cal.App.4th 1422 2.0...eee eee 173 People v. Randle (2005) 35 Cal.4th 987 ...............0.0000, 135-143 passim, 150, 260 People v. Ray | (1996) 13 Cal.4th 313 2...eeeeens 203, 275 People v. Reed (1996) 13 Cal.4th 217 2.0eeee 240 People v. Reyes (1974) 12 Cal.3d 486 20...ccccece een eee 240 People v. Rice . (1976) 59 Cal.App.3d998 12...ceeeee 289 People v. Richards (1969) 269 Cal.App.2d 768 2.0...ccc ec ee eee eee 140 People v. Rist (1976) 16 Cal.3d 211 0...ccccece ee 222, 223 People v. Rivera (2011) 201 Cal.App.4th 353 0...eeeeee 200 People v. Rodriguez (1986) 42 Cal.3d 730 1...ccc cece cece nee e aes 277 People v. Roldan (2005) 35 Cal.4th 646 2...cececece eae 133 xiii TABLE OF AUTHORITIES Page(s) People v. Rowland (1988) 206 Cal.App.3d 119 2...eeee 301 People v. Roybal (1998) 19 Cal.4th 481 2.eeeeee 275 People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 22...eeccc ees 162 People v. Ryner (1985)164 Cal.App.3d 1075 2.0...eceee 256 People v. Safjold (2005) 127 Cal.App.4th 979 2...ceene 163 People v. Sanders (1995) 11 Cal.4th 475 2.eeewees 274, 275 People v. Sandoval (1992) 4 Cal.4th 155 22eeecc ee een ¥82 People v. Sarun Chun (2009) 45 Cal.4th 1172 2...eeeeee 135, 260. People v. Saunders (1993) 5 Cal.4th 580 2...eeeeee ees 54, 55 People v. Schmeck (2005) 37 Cal.4th 240 2...cteae 278 People v. Sears (1970) 2 Cal.3d 180. 2...eectee eae 266 People v. Sedeno (1974) 10 Cal.3d 703 .......cnet cent n eee e eee eens 132, 212, 282 xliv TABLE OF AUTHORITIES Page(s) People v. Seijas (2005) 36 Cal.4th 291 2...eee 110, 111, 112 People v. Sengpadychith (2001) 26 Cal.4th 316 200.ccccee eee eeeees 294 People v. Shattuck (1895) 109 Cal. 673 2.0.eee eees 241 People v. Sisavath (2004) 118 Cal.App.4th 1396 20... 2...ceeeee 163 People v. Slaughter (1984) 35 Cal.3d 629 200ccccece eees 76, 78 People v. Smallwood (1986) 42 Cal.3d 415 02...eee 185, 187, 188, 189 People v. Smith (1983) 34 Cal.3d 251...ccc ccc cece cece eee eee 218 People v. Smith (2003) 30 Cal.4th 581...eee ccc cence eee eens 269 People v. Smithey (1999) 20 Cal.4th 936 22...ccccece eee 272, 273 People v. Snow (2003) 30 Cal.4th 43 2.cececee eee ee 295 People v. Solomon (2010) 49 Cal.4th 792 200ccc cee cece ene eee 203 People v. Song (2004) 124 Cal.App.4th 973 2...ccceee ee 163 xlv TABLE OF AUTHORITIES Page(s) People v. St. Martin (1970) 1 Cal.3d 524 0.ceeee 212 People v. Stanley (1995) 10 Cal.4th 764 2.0...ceeeee 279 People v. Stanley (2006) 39 Cal4th 913 ........... bene eee ence teen eee eens 97 People v. Stanworth (1969) 71 Cal.2d 820 2...eeeeee 208 People v. Sturm (2006) 37 Cal4th 1218 2...Lccee nc ee 296 People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323 2...eee79 People v. Superior Court (Howard) (1968) 69 Cal.2d 491 2...ceceee eee 80 People vy. Superior Court (Marks) (1991) 1 Cal.4th 56 2...eeeee eee 52, 54, 55 People v. Superior Court (Martinez) (1993) 19 CalApp.4th 738 2.0.0... . eee eee eee 70, 74, 75,76 People v. Taylor (1990) 52 Cal.3d 719 2...ecee ene 284, 285 People v. Taylor (2009) 47 Cal.4th 850 2...eeee ees 90, 91, 98 People v. Terrell (1955) 138 Cal.App.2d 35 2...ceeeee 240 xlvi TABLE OF AUTHORITIES Page(s) People v. Thomas (2005) 130 Cal.App.4th 1202 2.0...cee eee eee 163 People v. Thomas (2011) 51 Cal.4th 449 oo.eee204, 272 People v. Thomas (2011) 52 Cal.4th 336 2...cece ee eee ee 182, 204 People v. Thompkins (1987) 195 Cal.App.3d 244 ..............cence eee eee ae 266, 270 People v. Thornton (1974) 1] Cal.3d.738 2...ccc cece ce eee ee ees 133 People v. Travis (1880) 56 Cal. 251 ......Leceee eee eee n eee 150 People v. Traylor . (2009) 46 Cal.4th 1205 2...eeeeee 70, 78, 79, 80 People v. Tuggles (2009) 179 Cal.App.4th 339 oo...ceeee eee aes 255 People v. Turk (2008) 164 CalApp.4th 1361 ............eee eee eee eens 300 People v. Turner (1990) 50 Cal.3d 668 2.0.ccc cece cence ees 163 People v. Vera. (1997)15 Cal.4th 269 20.ccc cee cc ene neces 54 Peoplev. Virgil (2011) 51 Cal.4th 1210 2...eeees 203 xlvii TABLE OF AUTHORITIES Page(s) People v. Walker (1998) 47 Cal.3d 605 0.0...eceeeens 184 People v. Ward (2005) 36 Cal.4th 186 2.0...eeeee ees 133, 286 People v. Wash (1993) 6 Cal.4th 215 2...ccceee eens 241 People v. Watson (1956)46 Cal.2d 818 ...... 6.2 eee 142, 143, 146, 154, 201, 224 People v. Webb (1993) 6 Cal.4th 494 2...eeeeee 209, 211, 212 People v. Weber (1984) 162 CalApp.3d Supp. 1...eeee eee 140 People v. Welch (1999) 20 Cal.4th 701 2.2...eee eee cence eens 269 People v. Wheeler (1978) 22 Cal.3d 258 2...ceeee es 190, 254 People v. Wheeler (1992) 4 Cal.4th 284 20...eceee ee 218, 220, 222 People v. Wickersham (1982) 32°Cal.3d 307 2...eeeee eee 132, 133, 134 People v. Williams (1988) 44 Cal.3d 883 0.0... ccc cece cece ee seeeeeeeeeees Levees 284 People v. Williams (1998) 17 Cal.4th 148occee 54 xlviil TABLE OF AUTHORITIES Page(s) People v. Williams (2005) 35 Cal.4th 817 2.ceceeee eee 79, 80 People v. Williams (2008) 43 Cal.4th 584 0...eeeeens 120 People v. Williams (2010) 49 Cal.4th 405 20ccccee eens 203 People v. Woods (1993) 12 Cal.App.4th 1139 . 2...cece aes 81 People v. Wright (1990) 52 Cal.3d 367 0...eee eeeeee eee 203 People v. Yeoman (2003) 31 Cal.4th 93 2.ccccence eeas 203 People v. Young (2005) 34 Cal.4th 1149 22.eeeeee aes 212 Price v. Superior Court (2001) 25Cal.4th 1046 200...cece eee eee 208, 210 “Ramosv. Superior Court (1982) 32 Cal.3d 26.0.0...eee ee cee eee 71-76 passim Scherling v. Superior Court (1978) 22 Cal.3d 493 1...ccc cece cece cece eeas 245 Warford v. Madeiros (1984) 160 Cal.App.3d 1035 2.0...eee 111,112 Williams v. Superior Court (1984) 36 Cal3d 441 0.eee 180-190 passim xlix TABLE OF AUTHORITIES Page(s) Woodv. State (Tex. Ct. App. 2009), 299 S.W.3d 200 2.0... eeeee 170 CONSTITUTIONS U.S. Const. Art. I § LO occcee teenies 57, 67, 85 U.S. Const. Amend. Seeee eee es passim Occeete eee passim Bocceeens passim 14eeee eee passim Cal. Const. art. I §§ Dcccc eee eens 57, 67, 85 LOceeeee eee 57, 67, 85 |passim 16 occcc eee eee passim V7 Loc eee eeeeee 39, 190 28, subd. (d) .. 2... eee eee 196, 220 28, subd. (f)(4) ........ cee eee 218, 220 30, subd. (a)... 2.6eeee 179 STATUTES Pen. Code $$ Bcc eeeeeeeeeee eee 66 17, subd. (b)(5) 02... eee ee eee 79 4,5, 39 187, subd. (a) ........---20.0 000. 2, 3,4, 59 188 2...ceeeee 129 190. 2... eee eee ee eee 278, 279, 286, 288 190, subd. (a) . 2...eee 300 190.2.ecteens 279 190.2, subd. (a)(2) .......20-0-. 4, 38, 52, 59 190.2, subd. (a)(3) ... 2.0... ee eee 2, 4, 38 190.3, factor (€) ..... 2... eee eee 202, 279 190.3, factor (b) ... 2... eee eee ee 286 190.3, factor (d) .... 0.2... eee eee eee 286 190.3, factor (f) ...... 143, 260, 261, 263, 266 Penal Code §§ Cont. TABLE OF AUTHORITIES Page(s) 190.3, factor (g) ............. beeen ae 292 190.3, factor (i) .. 0... ee eee eee, 292 190.3, factor) ............00000. 262, 292 190.3, factor (k) ........0....0.000. 262, 263 190.4, subd. (e)) 2...eeeee 7 192ccccee eens 4,5 192, subd. (b) .............0002.000, 44,45 2U1eeecee 2, 4, 5, 23 245, subd. (a)... . eee eee 4,5, 23 664 oocee cece eee 5, 23 667 2.eceee eee eae 7 667, subd. (a) .............0000, 7,301, 302 667, subd. (a)(1) ... 0. eee eee 5 667, subd. (b)-(i) ......... 4,7, 300, 301, 302 667.5 Leec cceec eee 58, 62 667.5, subd. (b) 2... ee eee eee 5 061-74-passim 790, subd. (b) 2.2... ee ee eee 180 830.35, subd.(c) 2.0.0... eee eee 169 8598cece eee 57, 69, 70, 76 57, 69,70, 76 B71 eee eee eeeeee eee 57-85 passim BTLcee 72-79 passim 87175, subd. (a) ... 0...eee 73 B72ccccee eee eens 61 179 954.1 Loeeee re 179, 182 O95 ccece 57, 69, 70 1008 oo.eeeeee 76 LOL eecee eee 88 1158a 2.cece nee 285 1170.12, subd. (a)-(d) ..... 4,7, 300, 301, 302 1192.7, subd. (c)(23) ... 2... eee 4 1203.ccc240 1239, subd, (b) . 0.2... eee eee 8 1381 LL.ceeeee eee 76 1381.5 Lolcece eee 76 li TABLE OF AUTHORITIES Page(s) Penal Code §§ Cont. 1382 2... eee eee 61, 64, 69, 82 1385Lo eee 71, 76 1387 2...cee 38, 57-85 passim 1387, subd. (a)... 6... ee eee 70, 80 1387, subd. (a)\(1) 2.0... eee ee eee 65 W387.1 Loeee 57-85 passiny 1387.1, subd. (b) ... 0... eee eee.. 81 1389 2.eeeeee 76 4573.6 Locene 5, 23 12022, subd. (b)\(1) .......... beeen e eens 4 12022.5, subd. (a)(1) ... 2... eee 4 12022.53, subd. (b) ............. |.... 4, 302 Evid. Code §§ 210.eeenee 149-150 apassim M404 Loccette teens 110 520o eeeee 283 BOLeeeeee 173, 241 B02eeeens 241 . 110 L101 2.eee ee 181, 182 1270 2...eeeeae 241 1271 ....... 0... eee 229,. 238-239, 240, 241 1280 2... eee ee eee 229, 233, 239 1310 2...eeeeee 108 IDL) ee eens 108 Deering's Ann. Evid. Code (1965 ed.) § 1280, Cal. Law Revision Com. ................ 239 Gov. Code §§ ZTAOL Lccee eee 169 Q2T49OLL Loceee 169 274914 Locee169 Welf. & Inst. Code §§ 203 Loccee ee tee tenes 220 a42 i42 lit Welf. & Inst. Code §§ Cont. Cal. Stats Cal. Rules of Court Fed. Rules of Evid. CALJIC Nos. TABLE OF AUTHORITIES Page(s) eeDenes 42 oT 42 559ceceee 42, 46 a)0)eee eee eens 46 600 2.cece eee eee 40, 41 040, 41 602ceceeee passim TO] Lecceeee 40, 41, 48 102 Loe cece eens 40, 41, 48-49 39, 40, 41, 49 1772 eee cc eeeete ees 220, 221 1975, ch. 1266, § 4 ...............0005. 50 1984, ch. 742 § 1 oo.eee eee 44 1994, ch.12,§1, ..............0...00, 300 RULES A294 AA23 Lcccc nena 294 609cccnee eee 217 172 JURY INSTRUCTIONS 2.23ceeeee ees 218 e 22, 129 BAZ Llc ccc cece passim 5.13 Lleee 22, 127, 137, 144 S14 Lee22, 127, 137, 144 a22, 144 S16 Lecce cece eee 22, 127, 128, 144 passim 22 8.40 Lecceeens 144 a144 liti TABLE OF AUTHORITIES Page(s) CALJIC Nos. Cont. 8.44 Loleeeeee 144 8.50 Loleeec eens 144 I144 +ec144 a144 8.85 Leee eee eee passim 8.86 Loocceee eens 281 8.87 Loeeeee eee ees 286 8.88 2.0.2... eeecece eee es passim TEXTS AND OTHER AUTHORITIES ABAStandards for Criminal Justice - Special Functionsof the Trial Judge, std. 6-1.1 .............. 211 Claussen-Schulz et al., Dangerousness, Risk Assessment, and Capital Sentencing (2004) 10 Psychol. Pub. Pol'y & L.471 ........... 206 Dodson, What Went Wrong with Federal Rule ofEvidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence (1999) 48 Drake L. Rev. 1]...eeeee223 Haney & Lynch, Clarifying Life and Death Matters: An Analysis of Instructional Comprehension-and Penalty PhaseClosing Arguments (1997)21 Law and Human Behavior 575 ..... 268, 269 Hein, Joinder and Severance (1993) 30 Amer. Crim. L.Rev. 1139 ................ 020000. 183 1 McCormick, Evidence (6" ed. 2006) § 42 2.2.2.0... 0.000005. 217, 223 Mnookin, Expert Evidence and the Confrontation Clause After Crawford v. Washington (2007) 15 J.L. & Poly 791 ......... 173 Nat. Assn. of Medical Examiners, Forensic Autopsy Performance Stds. (Sept. 2006) 27 Am. J. of Forensic Medicine & Pathology no. 3 . 171 liv TABLE OF AUTHORITIES Page(s) Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J.3 ......... 290 Note, Testimonial Hearsay as the Basisfor Expert Opinion: The Intersection ofthe Confrontation Clause and Federal Rule ofEvidence 703 After Crawford v. Washington (2004) 55 Hastings L.J.1539 2.0...eee ee 173 Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries ofExpert OpinionTestimony (2008) 96 Georgetown L.J. 827 2.00... 0ceee ee 173 Shapiro, 4n Overdose ofDangerousness: How “Future Dangerousness” Catches the Least Culpable Capital Defendants and Undermines the Rationalefor the Executions It Supports (2008) 35 Am. J. Crim. L. 145 2.0...ee 204-205 White, Effective Assistance ofCounsel in Capital Cases: The Evolving Standard ofCare (1993) 1993 U.Ill. L. Rev. 323 . 143 5 Witkin,Cal. Crim. Law (3d ed. 2000) Criminal Trial § 423 ......... 76 2 Wooddeson, A Systematical View of the Laws of England (1792) Loccccence ccc e cee eee nnees 68 Wright, Federal Practice & Procedure (3d ed. 2000) § 485........... 212 INTERNET SOURCES [as of March 15, 2012] .. 0...2.cee2.21 [as of March 15, 2012] .... 21 [as of March 15, 2012] ...21 lv TABLE OF AUTHORITIES Page(s) INTERNET SOURCES CONT’D [as of March 15, 2012] ... 0... eees 21 Brenner, Toxicity, Hallucinogens -PCP (April 14, 2009) [as of March 13, 2012] .... 0.eeeeee 127 lvi IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) No. 8083594 Vv. (Los Angeles County . Superior Court No. TOMMY ADRIAN TRUJEQUE, VA048531-01) Defendant and Appellant. e e e e APPELLANT’S OPENING BRIEF INTRODUCTION In his 1999 trial in this case, appellant, Tommy Trujeque, was- sentenced to death for the 1986 killing ofMax Facundo, his cousin Charlene's abusive boyfriend, and convicted of second degree murder for his role in the January 1987 stabbing death of Raul Apodacaby a fellow gang member, Jesse Salazar. Salazar, the undisputed instigator_of the assault on Apodaca, pled guilty to voluntary manslaughter and-was sentencedto credit for time served in 1987. Appellant was alsofirst charged with Apodaca's murderin- 1987, but at that time, he was held to answeronly for manslaughter, and the charges were dismissed. Similarly, appellant was arrested a few days after the Facundo stabbing in 1986, but the charges were dropped. The state made no further effort to prosecute either case for over a decade,until 1998, when appellant, who had recently receiveda life sentence for armed robbery, contacted the Los Angeles County Sheriff's 1 Office and offered to confess to both the Facundo and Apodaca murders, as well as an additional armed robbery, in exchangefor the death penalty. STATEMENT OF THE CASE The current prosecution of appellant, in case number VA048531, wasinitiated on June 1, 1998 with the swearing of a three-count felony complaint for arrest warrant charging him with (1) the murder of Max Facundoon or about June 2, 1986 in violation of Penal Code section 187, subdivision (a)!, (2) the murder of Raul Luis Apodaca on or about January 23, 1987 inviolation of section 187, subdivision (a), and (3) second degree robbery of Ronni Mandujano and Spartan Burgers on or about Jahuary 21, 1998 in violation of section 211; counts one and two werealleged to be special circumstances within the meaning of section 190.2, subdivision (a)(3). (1 CT 1-8.) After agreeing to continue his arraignment on July 1 and 22, 1998, appellant’s request to represent himself was granted in the Municipal Court on August 6, 1998. (1 CT 15-17.) Appellant’s preliminary hearing was held on September 29, 1998. Appellant represented himself, stipulated to the cause of death as to both victims, and did not cross-examine any ofthe four witnesses whotestified. (1 CT 17-36.) Appellant was held to answer on all three counts of the complaint. (1 CT 8, 37.) | An information charging counts identical to the complaint wasfiled ‘AI section references are to the Penal Code unless otherwise indicated. The Clerk’s Transcript is cited as “CT” and the Reporter’s Transcript is cited as “RT.” on October 13, 1998.° (1 CT 39-44.) Athis first appearancein superior court on the sameday, the judge directed appellant to submit another petition to appear pro per if he wanted to continue representing himself. (1 RT 3.) On October 16, 1998, Judge Couwenberg granted appellant’s request to continue appearing pro per and arraigned him on the information; appellant pled not guilty. (1 RT 11-12, 17.) The court granted appellant’s requestfor funds and appointed an investigator. (1 RT 14-16.) On November 13, 1998, Andrew Stein was appointed standby counsel and appeared in court; trial was set for December 11, 1998. (1 RT 34-49;1 CT 68.) On November 17, 1998, appellant was found to have materials from the jail law library inhis cell, andthe Sheriff's Department proceededto revokehis pro perprivileges in the jail. (1 CT 71-102.) On November25, 1998, appellant signed a Substitution of Attorney, designating Mr. Stein as his attorney. (1 CT 70.) On December3, 1998, appellant’s motionto withdrawhis substitution of counsel was denied, and the trial was continued, over appellant’s objection, to February 25, 1999. (1 RT 51-6331 CT 103.) On January 22, 1999, the prosecution filed an amended information, on which appellant wasultimately tried, alleging the same three counts as before but adding a prior-murder special circumstanceallegation. (1 RT 66; 1 CT 109-112.) Count one charged appellant with the murder ofMax Facundo on or about June 21, 1986, in violation of section 187, subdivision (a). It also alleged appellant personally used a knife, within the meaning of *At the preliminary hearing on September 29, 1998, the complaint was amendedto correct the date to June 21, 1986. (1 CT 16.) 3 section 12022, subdivision (b)(1). (1 CT 109.) Count two charged appellant with the murder of Raul Luis Apodaca on or about January 23, 1987 in violation of section 187, subdivision (a), and alleged that he personally used a screwdriver within the meaning of section 12022, subdivision (b)(1). (1 CT 109-110.) Asto counts one and two, both the prior-murder and multiple-murder special circumstances werealleged under section 190.2, subdivisions (a)(2) and (a)(3), respectively. The prior murder alleged was a February 1971 second degree murder conviction in Los Angeles County. Counts-one and two werealso alleged to be serious felonies within the meaning of section 1192.7, subdivision (c)(23). (1 CT 109-110.) Count three charged appellant with the second degree robberyof Ronni Mandujano and Spartan Burgers on or about January 28, 1998,in violation of section 211. It was also alleged that appellant personally used a handgunwithin the meaning of sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b). Count three was alleged to be a serious felony within the meaning of section 1192.7, subdivision (c). (1 CT 110.) Asto countthree, it was alleged pursuant to section 1170.12, subdivisions (a) through (d), and section 667, subdivisions(b) through(i), that appellant had-suffered convictions for serious or violent felonies, including five violations of-section 211 (robbery), four attempted violations of section 211, two violations of section 245, subdivision (a) (assault), one violation of section 192 (manslaughter) and one violation of section 187 (murder). It was also alleged as to count three that appellant had “As discussed in ArgumentI, infra, the manslaughter and murder convictions are in fact for the same offense: the former being appellant’s juvenile adjudication forthe killing of Allan Rothenberg andthelatter 4 previously been convicted of serious felonies within the meaning ofsection 667, subdivision (a)(1), specifically (1) on December 13, 1989 in Los Angeles County, four counts ofrobbery in violationofsection 211 and two. counts of attempted robbery in violation of sections 664 and 211; and (2) on February 11, 1998 in San Diego County, robbery in violation of section 211. (1 CT 111.) Asto counts one, two andthree, it was further alleged that appellant had suffered the following prior serious felony conviction(s) within the meaning of section 667, subdivision (a)(1): (1) on February 19; 1971 in Los Angeles County, second degree murderin violation of section 187;° (2) on January 7, 1977 in Los Angeles County, attempted robbery andassault in violation of sections 664, 211.and 245, subdivision (a); (3) on January 7, 1977 in Los Angeles County, assault in violation of section 245, subdivision (a); and (4) on February 22, 1979 in San Bernardino County, attempted robbery-in violation.of sections 664 and 211. (1 CT 112.) Finally, it was allegedas to count three that, pursuant to section 667.5, subdivision-(b), appellant had been convicted on December 13, 1989 of a violation of section 4573.6 (unauthorized possessionofa controlled substance in prison), served a term as described in section 667.5 forthat offense, and did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during,-a period of five years being an adult murder conviction for the same offense. °An additional prior, a March 21, 1969 conviction for manslaughter. in Los Angeles County, in violation of section 192, is crossed out. (1 CT 112.) As explained in note 4, supra, this was a juvenile adjudication for the same offense for which appellant was convicted of second degree murder on February 19, 1971, also alleged as a prior conviction in the amended information. (/bid.) subsequent to the conclusion ofsaid term. Appellant was arraigned on the amended information on January 22, 1999. (1 RT 66; 1 CT 115.) Juror questionnaires weredistributed on July 15 and 16, 1999, and jury selection began on August 2, 1999. (2 CT 327-330, 3 CT 585-586.) Stephanie Holtz was appointed as second counsel to represent appellant and madeher first appearance August 2, 1999. (1 RT 119.) Jury selection was completed, and the jury sworn on August 11, 1999. (4 CT 946-947.) _ On August 10, 1999, the court denied Defendant’s Motion to Sever CountIII from Counts I and If. (3 RT 737-747, 4 RT 752; 4 CT 944-945.) The Court also heard Defendant’s Motionto Strike Prior Conviction — appellant’s 1971 second degree murder conviction — and denied it. (4 RT 753-767, 769-801;4 CT 944-945.) Defendant’s Motion to Dismiss CountII was heard on August 10 and 11, 1999 and was denied on August 12, 1999. (4.RT 807-838, 844-877, 893-938, 943-984; 4 CT 946-949.) A stay was grantedto August 16, 1999 so that appellant-could take a writ on the denial of his Motion to DismissCount II; the Court of Appeal denied the writ on August-16, 1999, and this Court denied the petition for review. (4 CT 948- 949, 954-955, 959; 4 RT 984.) Opening statements were given and testimony began.on August 16, 1999. (4 CT 954-955.) The case was submitted to the jury on August 25, 1999. (4 CT992-993.) On August 26, the jury requested a readback ofthe testimony of Richard Rivera and appellant’s tape-recorded statement: (CT 996.) On August 30, 1999, the jury returned its verdict: on count one, appellant was found guilty of the first degree murder ofMax Facundo, on count two, guilty of the second degree murder of Raul Apodaca and on count three, guilty of robbery. The jury also found that appellant had 6 personally used a knife, as to count one, a screwdriver, as to count two, and a handgun as to count three. The jury further found the multiple-murder special circumstance to be true. Appellantwaived hisright tojury trial, ~ stipulated to the 1971 prior second degree murderthat was alleged as a special circumstance and admitted the otherpriors alleged in the information. (5 CT 1000-1002.) On September 2, 1999, the court found the prior-murderspecial circumstanceto be true, and the penalty phaseofthe trial began. (5 CT 1009-1010) The penalty phase concluded on September 21, 1999. (5 CT 1083-1084.) During their deliberations, the jury asked to have appellant’s testimony andthe stipulation of his prior convictions read back to them. (5 CT 1085-1086.) On September 24, 1999, the jury returned a verdict of death. (5 CT 1291-1292.) And on November 9, 1999, the court denied appellant’s automatic motion under section 190.4, subdivision (e), to modify the death sentence. The court sentenced appellant-on allcharges as follows: For count one, the first degree murder ofMax Facundo;appellant wassentenced to death (5 CT 1312.) As to-count three,appellant was given a “consecutive sentence of 25 years to life pursuant to 1170.12(a-d) and 667(b) through (i).” (5 CT 1321; 12 RT 3078.) As to counts one and two, the sentences were enhanced with one additional year, consecutive, for the use of a dangerous or deadly weapon. Asto count three, appellant received an additional 10 years for using.a handgun. (5 CT 1312-1313, 1327.) As to all counts, the sentences were enhanced with a further 35 years, consecutive, for the finding of seven (7) five-year priors within the meaning ofpenal code section 667, subdivision (a). (5 CT 1312-1314, 1327-1327A.) The abstract ofjudgmentstated that, as to counts two and three, appellant was sentenced to 25 years to life. (5 CT 1327-1327A.) STATEMENT OF APPEALABILITY This appealis from a final judgment of death following a jury trial and is authorized by section 1239, subdivision (b). STATEMENT OF FACTS | A. THE GUILT-INNOCENCE PHASE 1. The Facundo Murder — Appellant’s cousin, Charlene Trujeque, began dating Max Facundo in about 1984, when she was 20 years old. (5 RT 1015, 1017.) Facundo was a memberofthe Florencia gang in East Los Angeles. (5 RT 1046.) According to Charlene, Facundo regularly used drugs, mostly PCP, and wanted her to do drugs withhim. (5 RT 1018, 1026.) Max beat Charlene at least once a month. (5RT 1018-19.) Charlene did not talk to her parents, Elena and Charlie, about Max’s abusive behavior, but they saw her frequently with her “face. bruised up.” (5 RT 1019, 1048.). Charlene’s parents were very upset by Facundo’streatment of Charlene. (5 RT 1048, 1254, 1256.) Facundo wasjealous and controlling. He would not let Charlene go out or even talk on the phone with.ker. parents. (6 RT 1326-27.) Sometimes, when they were worried about Charlene, Charlie and Elena-would_go to Charlene’s house, where she lived with Max, and Max wouldrefuse to let them see Charlene. (6 RT 1296.) When Charlene did come over, she had bruises on her arms and face and “constantly” had black eyes. (6 RT 1296.) Charlene was always making up stories about running into the door. Based on what she saw, Elena was afraid for her daughter’s life. (6 RT 1297) Charlene’s parents begged her to leave Max, but Charlene would not. (6 RT 1298-99.) Elena and Charlie wentto the police, but the police refused even to take a report; they said Charlene had to complain herself, but Charlene was too afraid of Max. (6 RT 1300.) Appellant had started writing to Charlene when she was 16-17 years old, while he was in prison. (5 RT 1016.) Appellant counseledCharlene to ~ stay in school so she could havea betterlife. (5 RT 1016.) While Elena testified that she thought appellant’s letters were not “cousinly,” Charlene. never thought appellant’s letters were inappropriate. (5 RT 1055, 6 RT 1288-90, 1315.) The detective who interviewed Elena said she had not expressed concern aboutthe letters until the week before trial, in a meeting with the prosecutor. (6 RT 1491.) Charlene met appellant forthefirst time whenhevisited her parents in May 1986, after being released from prison. (5 RT 1075, 1255, 1257; Peo. Ex. 6A,p.4.)° Appellant noticed that Charlene wasbeat up: “she had a black eye and a big lip and bumpson her forehead.” (Peo. Ex..6A,pp. 3-4.) Ona later visit, Charlene was wearing sunglasses,and“her lips [and] face is (sic) all swollen.” She didn’t want to say what happened but admitted her boyfriend had doneit. (Peo. Ex. 6A, p. 4.) Elena and Charlie told appellant how worried they were about what Max wasdoing to Charlene and conveyed their “sense-of urgency-and extreme fear” about the-situation. (6 RT 1323.) Charlie said Charlene and Max “smoke Sherm [PCP] and they ail — they both get. shermed out and they end up arguing and he ends up kicking her ass.” (Peo. Ex. 6A,p. 4.) Charlie said if it didn’t stop, “eventually he’s gonna kill her.” ([bid.) A weekor so before the stabbing, Charlie had a conversation with appellant ° People’s Exhibit 6Ais the redactedtranscript of appellant’s 1998 statement to police, which wasplayed for the jury but not taken downby the court reporter. (RT 1422-1423.) The unredacted transcript was also included as an exhibit to a defense motion at 2 CT 512- 6 CT 553. 9 about hurting Max but, Elena insisted, her husband “only” asked appellant to beat up Facundo, maybe break his arm orleg to teach him a lesson - but not to hurt him badly. (6 RT 1308, 1312.) On the evening of June 21, 1986, Charlene wasat her parents’ house; she again had a black eye. (5 RT 1022.) Appellant came over with another cousin, Raymond,and they sat on the porch talking for hours. (5 RT 1022, 1079, 1259.) Appellant and Raymondalso spoke to Charlie outside for about five minutes. (5 RT 1259-1260, 6 RT 1306.) Appellant was drinking cognac. He questioned Charlene about how she got the black eye, but Charlene would not say. (5 RT 1022.) Charlene couldtell appellant was mad about her black eye, and she asked him to promise not to hurt Facundo. (5 RT 1023-24.) Appellant said “promises weren’t made to be broken, something like that.” (5 RT 1023.) Later, Facundo came over, andCharlene introduced him to appellant and Raymond. (5 RT 1023.) Facundoagreed to give appeliant and Raymonda ride to appellant’s cousin Pat’s house. (5 RT 1023, 1082; Peo. Ex. 6A at p.6.) Max, Charlene; appellant, and Raymondpiled into Facundo’s Volkswagenandleft about 10:30 p.m. (5 RT 1024-1025, 1029, 1078.) On the way-to Pat’s house, Max, Charlene and Raymond smoked a “sherm”- a cigarette soaked-in PCP. (5 RT 1026-27.) By the time they arrived at Pat’s house, Charlene was “extremely high” and could not remember much of what happened. (5 RT 1057.) Charlene and Raymondgotout of the car and walked toward the driveway to Pat’s apartment. (5 RT 1028.) Charlene heard noises behind her and turned to see appellantstruggling with Facundo. (5 RT 1029.) She ran toward them, screaming at them to stop, “and all I knowis that I hold Maxand wefall together on the ground full of — I’m full of blood.” (5 RT 1029.) She screamed for someonetocall the police. (5 RT 1030.) She was 10 still “a lot” under the influence ofPCP and wasupset, screaming and hollering. (5 RT 1034.) The police handcuffed her hands and feet and put her in the backseat of a patrol car on her stomach. (5 RT 1034.) Charlene could remembernothing about getting to the police station. (5 RT 1035, 1059.) The next thing she remembered, she wasin a cell; a detective told her Max was dead. (5 RT 1036, 1059.) Facundo died of multiple stab woundsto the chest that would have caused him to bleed to death within approximately a minute. (5 RT 1166, 1176.) Charlie and Elena_received a phonecall that evening from Pat and learned Facundo had been stabbed in frontofPat’s house. (5 RT 1262- 1263.) Appellant called later and asked for a ride. (5 RT 1266-67.) They picked appellant up and took him to El Sereno. (5 RT 1266-1267.) On the way, Charlie yelled at appellant for getting them involved. (5 RT 1268.) Elenatestified that appellant claimed to have no remorse andsaid killingMax wasnothing to him. (5 RT 1268.) Elena admitted that she felt relieved Facundo was dead, because Charlene would not be beaten any more. (6 RT 1322.) She was worried, however, that Max’s family would retaliate, because “everybody” was saying she and Charlie had-paid to have Maxkilled. “... [S]omehow the word got out that — that we paid him because everybody knew that we hated Max...” (6 RT 1323.) Elena claimedthat, although they knew appellant had killed Max, they did not go to the police because they were scared. (5 RT 1273.) Oneofthe officers investigating Facundo’s death — Sergeant Beecherofthe South Gate Police Department — testified that at about two or three in the morning following the stabbing, a man identifying himself as Tommy Trujeque called and said he was“the onethat killed that dude” and 11 told him to let Raymond Guzman and Charlene Trujeque go. (6 RT 1390, 1395.) On June 26, 1986, appellant was arrested for the murder ofMax Facundo but the charges were dropped on July 2, 1986 for lack of probable cause. (7 RT 1672; Peo. Ex. 6A, p.10.) During thetrial, defense counsel attempted to ask Elena whether anotherrelative - appellant’s cousin Vicki —had been killed by her boyfriend about a week before the Facundostabbing. (6 RT 1324-25.) The prosecutorobjected that Elena could nottestify about the murder because she had notpersonally witnessed it, and the objection was sustained. (6 RT 1325.) Defense counsel explained later, at sidebar, that Vicki was stabbed AO times by her boyfriend, and the defense was attempting to show that Elena told appellant that she was afraid Facundo would do the samething to Charlene. (6 RT 1329-31.) Before Elena or Charlie Trujequetestified, the prosecutor asked the court to appoint counsel for them, because their testimony could incriminate them. (5 RT 1094.) Elena Trujeque did not invoke the Fifth Amendmentat the guilt-innocence phase, but after she testified, Charlie Trujeque did invokehis privilege against self-incrimination. (6 RT 1353.) Defense Counsel objected that the invecation of the Fifth Amendment wastoo broad and-said he wanted to ask Mr. Trujeque questions that would not incriminate him, especially about Vicki’s murder. (6 RT 1358-1359.) The trial court sustained Charlie Trujeque’s blanket assertion of privilege and ruled Vicki’s murder a collateral matter on which testimony would not be permitted. (/bid.) 2. The Apodaca Murder On January 23, 1987, appellant and six to eight people, including Jesse “Termite” Salazar, Raul Apodaca, Robert DeAlva, Frank [last name 12 unknown], Willie Contreras and Luis Villalobos, were partying — drinking and doing drugs — at an East Los Angeles upholstery shop owned by Richard “Conejo” Rivera. (SRT 1114, 1115, 1147.) Rivera dealtdrugs ~~ from the upholstery shop, and it served as a hangout for White Fence gang members. (5 RT 1110.) DeA\lvatestified that he had goneto the upholstery shop to buy and use drugs - heroin and cocaine. (5 RT 1107-08.) He did not remember much about that night because he had injected heroin more than once and passed out on oneofthe tables in the shop. (5 RT 1126, 1151.) DeAlva did not rememberappellant being at the upholstery shop that night and did not recognize him in the court room. (5 RT 1115-16, 1117.) Similarly, while DeAlva remembered the name Jesse Salazar, he couldn’t describe him. (5 RT 1116.) DeAlva could rememberonly that there was a scuffle and Apodaca ended up on the ground. (5 RT 1115, 1122.) He remembered taking Apodaca-to the hospital. (5 RT 1115.) Dr. Eugene Carpenter, referring to an autopsy report prepared 13 years earlier by another pathologist, testified that Apodaca died of a stab woundto the chest, at the notch of the collarbone. (5 RT 1162-1164, 1178, 1179-1180, 1183, 1189.) He had five other wounds on his lower chest and abdomen;these were abrasionsthat did not break the skin. (5 RT 1225.) A single shallow puncture woundtothe back of the neck appeared to have been inflicted by a different weapon, because its shape was different from the others. (5 RT 1180, 1186.) DeAlvasaid he had been on drugs when he gavehis statement to police in January 1987 and only vaguely remembered the statement. (5 RT 1118, 1155.) When the prosecutor suggested DeAlva was “afraid to snitch,” DeAlva replied “[nJo, I’m here totell the truth.” (5 RT 1115-16.) 13 The prosecution called Detective Birl Adamsto testify to DeAlva’s 1987 statement, in which he said he awakenedto see Jesse, Raul, and appellant fighting. Raul fell to the floor and appellant and Jesse fled. (6 RT 1372-1373.) DeAlva had also identified appellant’s photo in 1987. (6 RT 1375-76.) Bythe timeoftrial, Rivera was deceased, and the defense introduced his prior testimony, from appellant’s 1987 preliminary hearing. Rivera had testified that Jesse and Frank gotinto fist fight over a card game, Raul grabbed Jesse, and Luis took hold of Frank to break up the fight. (RT 1520- 1521, 1534.) The others left, except for Robert, Jesse, Raul, and appellant. (6 RT 1522.) Rivera wentto the bathroom for a few minutes, and when he- came out, Apodaca waslying on his back and appellant and Salazar were gone. (6 RT 1527.) Rivera said he did not hear any fighting whilehe was in the bathroom. (6 RT 1527.) He denied using any drugsthat night. (6 RT 1520.) Rivera and DeAlvatriedto revive Apodaca, then took him to the hospital, about five or six in the-morning. (6 RT 1528, 1531.) At the hospital, Rivera gave false information concerning the location ofthe stabbing; neither Rivera nor DeAlvaleft their name.’ (6 RT 1536-37, 2:CT "DeAlva failed to appear at appellant’spreliminary hearing in 1987, and prosecutors were unable to locate him. (2 CT 411.) Based on Rivera’s testimony, the magistrate found probable cause only for manslaughter. (2 CT 421.) Although the prosecution nevertheless filed an information in superior court, it was dismissed when the prosecutionagain could not produce DeAlva. (2 CT 428.) Appellant movedbefore trial to dismiss the Apodaca murder count on the groundthat the state had exceeded the permissible numberofrefilings under section 1387. (2 CT 333-482 CT 333- 48.) The motion was denied. (4 RT 981-984.) Appellant sought a writ of prohibition from the Second District Court of Appeal. (1 CT Supp. V 64 - 3 CT Supp. V 871.) The petition was summarily denied, as was appellant’s petition for review to this Court. (4 CT 953, 959.) 14 372-93.) 3. The Spartan Burgers Robbery ~~ Overappellant’s objection that joinder wasimproper,hewas also tried and convicted for the January 21, 1998 armed robbery of a Spartan Burgers restaurant in Huntington Park. (3 RT 737-747, 6 RT 1398; 2 CT 496-511 [Defendant’s Notice of Motion and Motion to Severthe Trial of Count II of the Amended Information from Counts I and II].) According to the cashier, Ronni Mandujano,the robberfirst ordered food then pulled a gun and demanded money. (6 RT 1400-01) The owner, seeing that Ms. Mandujano was nervous, gave the robber the money. (6 RT 1401.) When the owner wentto the back ofthe store to retrieve more money, the robber took Ms. Mandujano along at gunpoint. (6 RT 1401.) The robber then directed them backto the front of the store and left. (6 RT 1402.) On April 29, 1998, Ms. Mandujano picked appellant’s photo out of a six-man photo lineup. (6 RT 1403-04.) She also identified him-in the courtroom. (6 RT 1399.) 4. Appellant’s Confesssion The Eacundo and Apodacacases remained dormantfor over ten years, until February 1998, when Los Angeles County Deputy Sheriff Frank Durazo received-a call from another officer concerning an inmate — appellant — who claimed to have information about two Los Angeles homicides. (6 RT 1420.) Appellant wanted to confess to the murders in order to get the death penalty. (6 RT 1477, 1493.) Durazo andhis partner, Jose Romero, drove to San Diego and interviewed appellant. (6 RT 1421.) After reminding the detectives to read him his rights, appellant gave a statement concerning both the Facundo and Apodaca homicides, as well as the Spartan Burgers robbery. (6 RT 1422, 15 1472; Peo. Ex: 6A, p. 3). Appellant’s taped statement was played for the jury. (6 RT 1423.) a. Facundo In his statementto police, appellant said that when his uncle expressed fear that Facundo would kill Charlene and asked appellant to “take care ofit,” he understood that to mean that his uncle and aunt wanted Facundo dead. Appellant said that about two weeksafter their initial conversation, his uncle reminded him about“taking care of this dude” because he was“still kicking [Charlene’s] ass” “just about everyday.” (Peo. Ex. 6A, p. 5) Appellant and his cousins Raymond and Phillip agreed to go home with Charlie. Appellant got a hunting knife. “it was one of them knives that have teeth-on it where it doesn’t do anything when youstick it in but when youstick — whenyou pull it out that’s when it tears everything up, the kind, the goodkind.” (/bid.) They werevisiting and talking at Uncle Charlie’s house when Charlene came in and Uncle Charlie motionedthat Facundo wasthere. (/bid.) Appellant thought Charlene “sensed that something was:gonna happen” because she“knew appellant did not like the way Facundotreated’ her. (Peo. Ex. 6A, p..6.) On the way to Pat’s house, Max and Charlene smoked a “sherm.” Raymond “‘is already shermed out, he’s already smoked one or two... Red Daddies.” Appellant did not want to get high because “I won’t be able to do what I want to doin the right way.” (/bid.) Appellant was told that “when you kill somebody the main thing is to get away with it...So... this is what my computeris telling me.” (Jbid.) Appellant said he wasthinking to himself “there’s no way I’m gonnafail in this mission, because, you know, you know,the dudeis helpless man, and that’s the time if you want to kill somebody get ‘em when 16 they - when they’re helpless not when they can defend themselves.. .” (Peo. Ex. 6A, p.7.) When they arrived at Pat’s house, appellant got out the knife: Chartene andRaymondwerewalking ahead: Max’s backwas to ~ appellant, who grabbed Max aroundthe neck “andI just go for the target one time, and I stabbed him in the — in the heart, and, uh, I want to stab him again, I want to stab this mother fucker a 100 times”but as he pulled the knife out, Charlene was yelling “Tommy don’t, Tommystop...” (bid.) Facundofell on the curb. Appellant heard all this yelling “and my computeris telling me, man get the fuck out ofhere” so he ran away and buried the knife in some shrubs. (Peo. Ex. 6A,p. 8.) Appellant called his Uncle Charlie to pick him up. (/bid.) When Charlie and Elena picked appellant up, Charlie said “you didn’t haveto kill him,” but appellant responded that Facundo otherwise would have comeafter him later. (/d. at p. 9.) His Aunt Elena was “ecstatic” and thanked appellant prefusely. (Ibid.) According to appellant, some of the-neighbors had heard Charlene yelling his name, so investigators “put two and two together” and appeHant . wasarrested on June 26, 1987. (Peo. Ex: 6A, pp. 9-10.) The case was subsequently dismissed, however, for lack of evidence. (/d. at p.10) Appellant said that as payment for stabbing Facundo, his aunt and uncle sent him $200 in prison and gave him another $300, to purchase a gun, when he wasreleased. (/d. at p. 18.) b. Apodaca Concerning the Apodaca homicide, appellant told Durazo that “the 187 in Montebello” happened in an upholstery shop owned byappellant’s “homeboy” “Conejo.” (Peo. Ex. 6A, p.19.) Conejo’s first name was Ricky but appellant could not rememberhis last name. The upholstery shop was 17 wherethey partied and got high. (/bid.) Conejo and Jesse Termite dealt drugs from the upholstery shop, and there were alwaysprostitutes there. The night of the murder there were four or five of them at the upholstery shop drinking and playing poker and snorting coke andthe prostitutes were | doing whatthey did every night. (Ibid.) | Raul and Jesse Termite, who was Conejo’s money man, didn’t get along. (Peo. Ex. 6A, p.19.) The group decided to go to the Quiet Cannon bar and werethere for three or four hours. (/d. at p. 20.) At the Quiet Cannon, Jesse kept mentioning to appellant that he “hated this mother fucker... He wants to kill this mother fucker.” (/bid.) Appellant wasjust listening, notpaying attention until they got back to the upholstery shop and Jesse said he was “gonnastab this mother fucker man”andtold appellant “I just want you,to have my back” and “back my play” if Raul got the best of him. ([bid.) Appellant still did not think Jesse would do anything. (bid.) Somepeople left, so that-Conjeo, Jesse Termite, Raul, and appellant were the only onesleft. Jesse Termite and Conejostarted fist-fightmng. (/d. at pp. 20-21.) Appellant figured they were drunk. (Peo. Ex. 6A, p. 21.) He broke up the fight, then went to the-restroom to snort some coke. When he came out, Jesse and Raul werefighting. (/bid.) Raul wasgettingthe best of Jesse. Appellant went to break it up and Raulpushed him andhit him in the face. (Ibid.) Appellant said “the red light goes on and the alarm goesoff,” and he walkedto the table where Conejo’s tools were and grabbed a screwdriver. Jesse Termite was on top of Raul stabbing him, so appellant went over, bent down and stabbed Raul! two to three times on the left side of his body. (/bid.) Appellant didn’t know what kind of weapon Jesse had, but he had 18 something in his hand that he was stabbing Raul with in the chest, his arms, and other places. Conejo was “all hysterical.” He pulled Jesse Termite off Raul, and Jesse ran tothedoor,tellingappellant “fet’s go, let’sgo.”(Peo. Ex. 6A, p.21.) Appellant left with the weapon in his hand. (/d. at pp. 21- 22.) He and Jesse threw their weapons on the roof of a car port and spent the night at Jesse’s house. (/d. at p. 22.) Appellant believed Conejo told police that he and Jesse did it and “from then on they wereafter me for the 187.” Appellant “gave Jesse up,” and he wasarrested after appellant. ([bid.) c. Spartan Burgers Robbery Appellant also confessed to the Spartan Burgers robbery. Hesaid he waswithhis cousin Teddy, Charlie’s and Helen’s son, and Teddy needed money. (Peo. Ex. 6A,p. 30.) Appellant proposed “let’s just hit this burger thing right here.” (/bid.) He went into the store and ordered a pizza or something. Whenthegirltallied the price up, appellant reached into his pocket, took out a gun andtold her to give him all the money. Appellant thought he got “close to $400.” He gave Teddy $150 and keptthe rest. (ibid.) Appellant next saw Teddy when he went to Super BowsSundayin San Diego “and got caught doing another robbery with his fat ass.” (Ibid) 28 At the end ofthe interview, appellant told Durazo thatifhe got the death penalty, as he wanted, he would alsotell the police everything he knew about the murder of George Arthur.® (6 RT 1468-1469; 6 CT 552.) Durazo explainedthat hundreds ofpeople claimed to have information ‘Durazo had asked appellant “[s]ince we’re on roll,” if there was anything else appellant would like to confess to? (3 CT 551.) 19 about the Arthur case — a killing of a Los Angeles sheriff's deputy that was still unsolved at the time of appellant’s confession. (6 RT 1468-1469.) It turned out, however, to be a marital dispute. (6 RT 1469.) 5. The Garcetti Letter In a further effort to secure the death penalty, appellant wrote a letter to Los Angeles District Attorney Gil Garcetti on September 19, 1998 while awaiting trial. (Peo. Ex. 8B for identification.) In the letter, appellant taunted Garcetti - “if ‘you’ don’t have enoughballs to & guts to give me what I deserve, by sending myass to the ‘gas chamber,’ then my only other recourse is to kill someoneelse - once I return to prison - in order to finally receive the ‘ultimate punishment’ that even the man upstairs knows I deserve!” In this letter, Appellant also adverted to two additionalspecial circumstances, claiming that he killed Facundo“for hire” and that he killed Apodaca, “while I was robbinghim.” (/bid.) The prosecutor acknowledgedthat these claims were false and that appellant was just “bragging” and asserting the existence of additional special circumstances (robbery and financial gain) in an effort to enhance his chancesof getting a death sentence. (7 RT 1681-1687, 1701-1702.) In the letter, appellant also disclaimed the existence of mitigating circumstances. He denied being drunk or underthe influence of any drug; he also denied suffering from “any mental disorder” or being mentally retarded. (Peo. Ex. 8B for identification.) To the contrary, he insisted, he “knew exactly” what he was doing andstill felt that “both of those cowards deserved whatthey got.” For good measure, appellant wrote “As a matter of fact, if I had the opportunity to do it over, I would cut off their heads and send ‘em both to their family (sic).’” “So,” appellant wrote, “you needn’t ‘cry for me, Argentina,’ because I’m more than ready, willing & able to 20 face the music and accept responsibility for my actions... .” Appellant vowedhe would not be changing his mindlike “someidiots on death row ~have recently did;”becausehewas“proudoftakingout”the“two(2) cowards.” Finally, appellant told the District Attorney he could do as he pleased “with this 1i’] ‘incriminating note.’” ([bid.) Over repeated defense objections that the letter was far more prejudicial than probative, the prosecution was allowed to introduce a redacted version of the letter, which includedthe false assertions of special circumstances, the remark about severing the victims’ heads, and the claim to be proudof“taking out” the “two (2) cowards.” (6 RT 1441-47, 1453- 62; 4 CT 972-84; Peo. Ex. 8.) The version admitted at the guilt-innocence phase of the case redacted only appellant’s threat to kill someonein prison if he did not get the death penalty; his claim that he had committed other, still unsolved, homicides in prison; and his assertion that he did not regret his.actions. (6 RT 1443-1444.) At the penalty phase, another version of the letter was admitted into evidence, which redacted only the claim about unsolved homicides. (9 RT 2267-2268, 2283; Ex. 8A.) 6. Appellant’s Testimony Appellant insisted on testifying, against the advice of counsel. (7 RT 1577, 1585.) Appellant had not slept the night before, nor had he taken his medication, which consisted at the time of haldol, cogentin, and valium.’ (7 *Haldol, a brand-nameof haloperidol, is an antipsychotic drug, also used to treat severe behavioral problems and hyperactivity in children. (; [as ofMarch 15, 2012].) Cogentin, a brand nameofbenzatropine, is an anticholinergic drug used to reducethe side effects of antipsychotic medication. ( [as of March 15, 2012].) 21 RT 1584-1585.) As in his statement to Durazo andhisletter to Garcetti, appellant took responsibility for both murders. (7 RT 1591, 1600, 1605, 1622, 1625-1626, 1628.) Over defense objection that it was unduly prejudicial and remote, appellant was impeached with his 1971 conviction for second degree murder, committed in 1969, when appellant had just turned 16 (6 RT 1505-1515, 1578-1581), as well as his other prior convictions (6 RT 1705-1706). Appellant testified that hekilled Facundo “because he deservedit” (7 RT 1595), again claimed the Apodaca murder had been a robbery (7 RT 1661), and denied being mentally ill (7 RT 1601- 1602), or high at the time of the offenses (7 RT 1591, 1621, 1628). Appellant refused to answer questions about why he wanted to be sentenced to death, saying he did not want to discuss it. (7 RT 1600-1601, 1689.) 7. Jury Instructions Based on the defense theory that appellant had acted in mistaken ‘or imperfect.defense of-Charlene Trujeque when he stabbed Facundo,andaiso that appellant hadinterceded to protect Apodaca from Salazar, defense counsel requested instructions on mistake offact, necessity, homicide in defense of another, and actual but unreasonable belief in necessity to defend — CALJIC Nos. 4.35, 4.43, 5.13, 5.14, 5.15, 5.16, 5.17, 5.32. (5 RT 1555- 1565; 5-CT 1208-1215.) These were refused. (6 RT 1556-1557, 1561- 1565, 1713.) As to count two, the Apodaca murder, the jury was instructed on voluntary manslaughter with provocation at the request of the defense. (7 RT 1765-1769; 5 CT 1150A-1156.) Appellant was convicted of the first degree murder ofMax Facundo, Valium, or diazepam,is used to relieve anxiety, muscle spasms, and seizures. ( [as of March 15, 2012].) 22 the second degree murder of Raul Apodaca, and the second degree robbery of Ronni Mandujano and Spartan Burgers restaurant. (7 RT 1855-56.) ~Folltowingthe jury’s verdictappellant waived his right to ajury ~~~ determination ofhis prior convictions, (7 RT 1861, 1868), and admitted the following convictions: (1) a 1989 Montery County conviction for possession of cocainein a correctionalfacility in violation of section 4573.6 (7 RT 1863-1864); (2) a 1975 Los Angeles County conviction for joyriding (7 RT 1864); (3) 1988 Los Angeles convictions for three counts of robbery and two counts attempted robbery in violation of sections 211 and 664 (7 RT 1864-1865); (4) a 1998 San Diego conviction for robbery with a firearm (7 RT 1865); (5) a 1979 San Bernardino County conviction for attempted murder with a knife (7 RT 1866); (6) a 1976 Los Angeles conviction for assault with a deadly weaponin violation of section 245, subdivision (a) (7 RT 1866);-and (7) a 1976 Los Angeles conviction for for attempted robbery (7 RT 1866-1867). Appellant also waived_his right to a jury on the prior murder conviction, andthe trial court found the prior-murderspecial circumstanceto-be “true.” (7-RT 1868, 8-RT 1874.) B. PENALTY PHASE 1. Aggravating Evidence In its case in aggravation, the prosecution_presented evidence of appellant’s prior convictions and unchargedcriminalacts. a. The Prior Murder The prosecution introduced appellant’s confession to-the February 7, 1969 killing of Allen Rothenberg, a few weeksafter appellant turned 16 years old. (9 RT 2167-2171.) At about 1:30 pm, appellant called Nate’s Liquor Store and ordered a case of Colt 45 beer to be delivered to the apartment where helived with his mother. (9 RT 2168.) Appellant’s friend 23 Bert G. and a girl were there at the time. (9 RT 2168.) Appellant had armed himself with a knife because he planned to rob the delivery man. (9 RT 2169.) When Rothenberg arrived, appellant put a knife to his neck and threw him to the floor, announcing “this is a stickup.” (9 RT 2169.) Appellant stabbed Rothenberg multiple times then dragged the body downstairs where Bert G. helped him throw the body overthe fence in the backyard. (9 RT 2169-70.) Former LAPD officer Ruben Sanchez, who responded to the call when Rothenberg’s body. was found, lived near Nate’s Liquor Store and knew the victim;he testified that Allen Rothenberg used to drag one foot and was “mentally slow.” (9-RT 2221, 2225.) Appellant wasarrested early the next morning and confessed to the killing. (9 RT 2233-2236.) Sanchez identified 22 photos of the Rothenberg crime scene, which were introduced into evidence. (9 RT 2226-2232.) - Thetrial court took judicial notice of appellant’s juvenile court file, which consists of three sealed volumes in-the Clerk’s Transcript. (4 RT 753; 1& 2 CT Supp. IV, CT Supp. IVA.) These are discussed in the sealed portions of Appellant’s brief. b. Other Offenses The prosecution first presented evidence-about the San Diego robbery which led to appellant’s arrest and subsequent confession to the Apodaca and Facundo murders. On Super Bowl Sunday 1998, appellant robbed TLC Liquorsin Imperial Beach. (9 RT 1901-1903.) Nissim Jenah, who was working at the store at the time, testified that appellant came into the store aboutfour in the afternoon and ordered several large bottles of Hennessey cognac andcartonsof cigarettes. (9 RT 1904.) Instead of paying, appellant pulled out a gun and demanded money. (9 RT 1905- 24 1906.) After Jenah gave him the money, appellant pointed the gun at the back of Jenah’s head and told him to lay down onthe floor. (9 RT 1908- 09.) Afterappellantputthe gunaway, however,Jennachasedafterhim and~ ~~ flagged downa police car. (9 RT 1910-1911.) About 20 minutes after Jenah gavehis report, the police told him they had someonein a policecar, who they hoped was the robber. (9 RT 1912.) Appellant was apprehended about 3/4 mile away, outside the Old Plank Inn in Imperial Beach. (9 RT 1931.) The ownerof the Inn observed appellant leaving his gun andleather coat under a nearby tree and called the police. (9 RT 1923-24.) Police respondingto the call saw appellant and arrested him. (9 RT 1932.) Jenah was broughtto the scene andidentified appellant. (9 RT 1913.) | The portion of appellant’s statement in whichhe confessed to the TLC Liquor Store robbery wasalso played for the jury and the transcript | introduced into evidence. (8 RT 1936-1937, 9RT 2238; Peo. Ex. 10.) In his statement, appellant said-he was mad at himselfbecause he.“‘knew when I got out of the joint I knew what was gonna happen if-f ever went back to prison —... ona felony conviction, knew thee(sic - there) was no day light.” He preferred-“‘to come outblastin’ and die on the streets than in CMC[California Men’s Colony] 90 yearsold. And if— and — and — and promised myself if I~ if’mnot packing then I’m just gonna comeout of the car real quick and reach for something like I am,you know, so they could blast me, you know.” Appellant didn’t carry out his plan to provoke his own shooting death, because he didn’t think he had any evidence on him. (Peo. Ex. 10, pp. 38-39.) The prosecution introduced the formertestimony of Rondelle Self, now deceased, who had been assaulted by three other inmates, including 25 appellant, in the Los Angeles County jail in 1976. (8 RT 1945-1946, 1948.) The men demanded moneyand, whenSelf refused, one of the men beat Self on the head with a belt wrapped around his hand while appellant and another man pushed and kicked him. (8 RT 1947-1948.) Self required 14 stitches on his head and face. (8 RT 1949.) He received a reduced sentence of probation in exchangefor his testimony. (8 RT 1958.) Rudy Ortiz testified that, in 1976, appellant and a codefendant, tried to steal a car at knife point from Ortiz and his friend Tony Montano. (8 RT 1977-1978.) When-Mr. Ortiz attempted to flee, appellant stabbed him in the ensuingstruggle; Ortiz was cut on the chest, leg and wrist and required stitches on-his leg. (8 RT 1980.) The Baldwin Parkpolice officer, Kenneth Boyd, whoarrested appellant testified he had seen appellant and another man running through an apartment complex and gave chase. He tackled appellant and, after a struggle, cuffed him. Another officer found.a steak knife in appellant’s back pocket. (8 RT 1982, 1984-1986, 1987, 1989.) Between February 14 and 16, 1987, appellant robbed or attempted to rob three liquor stores in the same neighborhood, two of them twice in the three-day period. (8 RT 1993-2013.) | A corrections officer testified that-in 1978, while working at the California Institute for Men in Chino, he sawappellant attack another inmate, Ruben Gaxiola, who afterwards was bleeding heavily from his ribcage. (8 RT 2096, 2101, 2103) Gaxiolatestified-he had about seven.to eight wounds, the worst was oneto his left side that punctured a lung; he was in the hospital for a week. (8 RT 2119-2120.) Frank O’Haretestified that in Folsom prison in-1978 appellant had stabbed him in a dispute after failing to deliver on a promised trade of canteen goods. (9 RT 2180, 2183-2184.) On cross-examination, O’Hare 26 acknowledgedthat he is schizophrenic and that he hopedto get special housing in exchangefor his testimony against appellant. (9 RT 2189-90.) --O*Hare hadbeeninFolsomafterbeingconvictedofrobbery andanescape— in which hestole a bailiffs gun duringtrial andtried to kill him. (9 RT 2192.) As noted above, over renewed defense objection,thetrial judge admitted another version of appellant’s letter to Mr. Garcetti with fewer redactions, including appellant’s statement that he did not “regret my actions in any way, shape or form”andhis threat to kill someone in custody if he did not get the death penalty in his currenttrial. (9 RT 2267-2268; Ex. 8A.) 2. Case in Mitigation Defense counsel attempted to dissuade the jury from allowing appellant to: commit “suicide by jury.” (11 RT 3009.) The defense presented evidence that appellant became a wardofthe state at the age of nine-and wasessentially raised in institutions, never receiving the nurturing necessary for normal emotional development. In addition, appellant’s father, a violently abusive drug addict who was-in and outofprison, was a poor role model. a. Limitations on the Mitigation Case The mitigation case was limited bythetrial court’s rulings. First, when defense counsel attemptedto call appellant’s uncle Charlie Trujeque to testify about appellant’s father and his paternal family background, the prosecutor objected that Charlie Trujeque might incriminate himself. (10 RT 2567, 2582-2583.) Through counsel, Mr. Trujeque then formally invoked the Fifth Amendment and refused to answer any questions. (10 RT 2567-2571.) The court sustained his blanket assertion ofprivilege. (10 RT 27 2586.) The defense proposedto instead call Elena Trujequetotestify as a family historian, but she wasalso allowedto assert her privilege against self-incrimination — even though she hadalreadytestified at the guilt: innocence phase—on the groundthat she could be subject to perjury charges for herearlier testimony. (10 RT 2588, 2595, 2597, 2659, 2661-2665.) Trial counsel therefore presented little evidence about appellant’s father and none about his father’s family background. Second, the trial court excluded as hearsay the contents ofjuvenile probation reports prepared when appellant was first taken into state custody, because the defense could not produce the authors, who were now deceased or could not be located. (9 RT 2424, 2431-2437.) The defense did produce twoof appellant’s juvenile probation officers who handled his case from the time he was 11 to 14, but — at the prosecutor’s urging — the court also excludedportions of the probation reports preparedby. these officers that referenced the earlier reports or discussed appellant’s childhood diagnosis of brain damage, on the ground that they were hearsay and not | based on the firsthand knowledge of the records’ authors. (11 RT 2805- 2808, 2810-2812, 2814, 2817-2821.) The court also excluded the pertions of appellant’s school recordsthat recorded appellant’s-childhood medical history on the same grounds. (11 RT 2868-2870, 2874.) Defense counsel objected repeatedly that such records were admissible under various exceptions to the hearsay rule or under the Due Process Clause to the federal Constitution, citing Green v. Georgia (1979) 442 U.S. 95. (8 RT 2149-2152; 9 RT 2434; 10 RT 2725-2728, 11 RT 2864-2874.) Because appellant’s juvenile file is sealed in the record, the contents of the excluded reports are discussed in Argument XIII, infra, which is filed underseal. 28 b. Mitigating Evidence The defense presented testimony from appellant’s half-sister and ‘severalmaternalauntsanduncles concerninghischildhoodandhis © mother’s family history. Appellant wasthe illegitimate child of Manuel Adrian Trujeque and Mildred (“Tillie”) Dominguez. Mildred’s mother died when she was 12, and Mildred and herfour siblings, who ranged in age from eight to 14, were taken away from their father, who had a drinking problem. (9 RT 2374- 2376.) The children were placed first at juvenile hall then at boarding homes. (9 RT 2376-2377.) When Mildred met appellant’s father, Adrian, at a bar, she had previously been married to a man named Dominguez, whowasthe father of appellant’s half-sister, Rosemary. (9 RT 2380-2381.) Adrian Trujeque was violently abusive to appellant’s mother, including beatingher while she was pregnant. (9 RT 2295-97, 2339-40, 2384, 10 RF 2671, 2678, 2684.) Mildred’s brother, Marcelo, saw her with a bruised mouth and bloody nose. Mildred wasterrified ofAdrian, sometimesto the point of hysteria. (10 RT 2678-2679.) Marcelo and Mildred’s brother-in-law, Tony Garcia, attempted to intervene to protect Mildred and Rosemary. (9 RT 2384) Mildred took refuge from Adrian at their houses, once staying with Marcelo for more than a month. (10 RT 2678, 2684.) Mildred’s sisters took Rosemary to stay with them, to get her away from Adrian; on at least one occasion, they overheard Adrian beating Mildred as they left. (9 RT 2297, 2371, 1ORT 2671-2672.) Other times, Rosemary would play a record in her room, over andover, in an effort to drown out her mother’s screams. (9 RT 2340.) A narcotics addict, Adrian Trujeque wasin and out ofprison as 29 appellant was growing up.'° (11 RT 2835, 2846, 2856.) Both before and after appellant was born, Mildred was romantically involved with Sol Slotnick, a former co-worker. (9 RT 2380, 2389-2390, 2402-2403.) Before appellant was born, Mildred had a baby, Rebecca, with Mr. Slotnick. (10 RT 2382-2383, 2690.) Rebecca died of pneumonia at the age of six months. (9 RT 2383, 2690-2691.) Mr. Slotknick lived with. Mildred off and on for many years. (9 RT 2402.) They never married, however, because Mr. Slotknick was already married and had afamily on the east coast. (9 RT 2310, 2382, 2402.) Rosemary had fond memories of Slotnick and considered him her father. (9 RT 2300.) Shetestified, however, that none of her happy memories of family outings with her mother and Slotnick includedappellant. (9 RT 2309.) One of appellant’s cousins saw Slotnick pull appellant, hit him in the head, and.throw him in the car. (9 RT 2394-2395.) Mr. Slotnick died in 1967. (9 RT 2300.) -Rosemary testified thattheir mother wascold, selfish, and secretive. (9-RT 2300, 2332.) She did not show affection easily and did not talk about her feelings. (/bid.) Rosemary was,at the time oftrial, in therapy to resolve issues from her childhood. (9-RT 2307-2308.) Appellant, however, was.completely devoted to his mother. (9 RT 2329-2330.) He was devastated when. Mildred had a stroke and washospitalized. (9 RT 2326, 2328.) ‘Among theinformation defense counsel sought to elicit from Charlie Trujeque wasthat his brother Adrian had died of a drug overdose in 1968. (10 RT 2572.) Because Mr. Trujeque’s assertion ofhis privilege against self-incrimination was sustained, this was not brought out before the jury. (10 RT 2586.) The defense introduced Manuel Trujeque’s death certificate into evidence, but the prosecution would not concede the cause of death. (10 RT 2745, 11 RT 3036; Def. Ex. N.) 30 When appellant was two or three, Rosemary hit him in the head with a shoe. (9 RT 2304, 2347.) That night, he developed a fever and had a medication Dilantin, which also served as a sedative, throughout mostofhis childhood. (9 RT 2428, 10 RT 2497, 2501, 2846.) His mother did not give him the medication consistently when he lived with her, however, and appellant was noted to be extremely impulsive and hyperactive. (9 RT 2427-2428, 2439, 2443.) Appellant was placed at The Sycamores,a residential children’s home on June 1, 1962."' (9 RT 2438-2439.) Mildred told Rosemary that “Tommyis not going tobe with us anymore”and that appellant wasn’t behavingand therefore had to be ina home. (9 RT 2312, 2316, 2354.) Rosemary could remember accompanying her motherto visit appellantat The Sycamores only once, because her mother did not want Rosemary in “that environment.” (9 RT2360.) Mildred did nottell other family members why Tommy-wasno longerliving at home. (9 RT 2387; 10 RT 2673, 2685.) Infact, his Uncle Marcelo did not know appellant was no longer living with Mildred. (9 RT 2386-2387.) Marcelo-would have been willing to take appellantin. (9 RT 2387.) After appellant had been at-The Sycamores for more than a year and a half, his mother requested that he remain there because she was working "'Thetrial court excludedthe contents ofthe early juvenile probation reports which explained the circumstances in which appellant became a ward ofthe state and the assessments of appellant’s medical and psychological condition that were considered in finding an appropriate placement for him. Asthese reports are in the sealed part of the record, they are described in more detail in Argument XIII, infra, which is filed underseal. 31 full time and could not supervise him. (11 RT 2836.) A year later, when appellant had been suspendedrepeatedly from public school because of behavior problems, his mother and Mr. Slotnick volunteered to pay for tutoring if The Sycamores would keep appellant there rather than sending him home. (11 RT 2840-2841.) Appellant finally returned homein September 1965. (10 RT 2559.) Appellant did not get along with Mr. Slotnick, who was nowliving with appellant’s mother, however, and despite doing well initially, he was soon in trouble again. (10 RT 2457-2458, 11 RT 2845-2846.) Kurt Kocourek, the probation officer who began supervising appellant near the end of 1965, characterized appellant as a friendly, likeable kid with lots ofproblems — he was vey hyperactive and had poor impulsecontrol. (10 RT 2420, 2439, 2443, 2453.) By September 1966, a supplemental petition had been filed in juvenile court alleging that appellant had run away and wasincorrigible at home; he had been suspended from four different schools. (11 RT 2849.) In October 1966, Kocourek securecca placement for appellant at Tarzana Hospital, a psychiatric hospital with a children’s wing. (10 RT 2422.) Kocourek decided torecommend a psychiatric hospital after reviewing the entire probation file, observing appellant at home with-his_mother, and seeing that appellant was having trouble in school becauseofhis hyperactivity. (10 RT 2427.) Kocourek recommended the placement because(1) it a was closed setting and appellant could not run away and(2) appellant could get psychological and psychiatric counseling. (10 RT 2427- 2428.) It was “a matter of record” that appellant had organic brain damage. (9 RT 2428.) Reports from the psychiatric unit at juvenile hall stated appellant-had a brain lesion or organic brain damage, dating back to the age 32 of 3%. (9 RT 2428-2429.) EEG examinations when appellant was young showeda serious brain lesion, though later reports indicated less severe ~~ damage,andKocourek concluded appellant had other problems. (IORT ~ 2460-2461.) Today, appellant would probably be diagnosed with attention deficit disorder. (10 RT 2453.) After less than a month, appellant was removed from Tarzana Hospital for “serious and persistent misbehavior,” including sneaking over to the girls’ dormsat night. (9 RT 2440, 10 RT 2464, 11 RT 2849.) Regarding the allegations that appellant may have been having sexual liaisons with the female students, appellant’s mother reported that shortly before his placementat Tarzana, appellant’s father had procureda prostitute to “seduce” appellant. (9 RT 2447, 11 RT 2849-2850.) Appellant’s mother wasvery upset and asked to bar appellant’s father from further visits. (11 RT 2850) Following his expulsion from Tarzana, Kocourek had difficulty finding another-placementfor appellant, because his impulsive-acting out was well known. (9 RT 7442, 2444.) Kocourek did not consider appellant to be truly delinquent and wastherefore trying everything he could to keep him out-of the California Youth Authority. (9 RT 2442-2443; I0 RT 2453.) Appellant was placed for awhile in Unit O, an intensive therapy program-in juvenile hall, but he came back late from a homepass, and the program refused to take him back. (9RT 2445.) Appellant was thereafter essentially at home again. (9 RT 2466.) In the beginning, appellant did well but then reverted to his old pattern of not cooperating and not being able to attend public school which meant he could not remain at home. (9 RT 2466.) Appellant disappeared from home for long periods of time and continued to have difficulty getting along with 33 Slotnick. (9 RT 2467.) The homesituation deteriorated to such a degree that appellant’s mother “threw her hands up”and said she could not have appellant in her house anymore. (9 RT 2468.) In June 1967 Kocourek persuaded Lakeside Lodge in Elsinore to take appellant. (10 RT 2465.) Approximately four months later, he was removed from that program and charged with assault with a deadly weapon for throwinga rock at a motorcyclist — Kocourek thought this was a typical impulsive act by appellant. (9 RT 2444; 10 RT 2469.) Appellant was thereafter placed in a Los Angeles County Probation Department camp for juveniles — a military- typeprogram that wasthe last stop before.commitment to the Youth Authority. (10 RT 2469-2470.) Dr. Marshall Cherkas who evaluated appellant for the juvenile court in November 1966,after his expulsion from Tarzana Hospital,testified that he-found appellant emotionally unstable, with a history-of borderline organic brain damage and treatment for psychomotor epilepsy. (10 RT 2495.) Dr. Cherkas said appellant struggled with parental rejection. Even if appellant’s mother was not a bad mother, he explained, a childwill certainly experience his mother-saying she-can’t deal with him asrejection. (10 RT 2525.) Dr. Cherkas said-that nurturing can sometimes compensate for organic brain damage, but appellant’s parents did not provide nurturing. (10 RT 2510.) Instead, during the mostcritical years for his emotional development — agesnine to twelve — appellant waslivingin an institution. (10 RT 2512, 2514.) He was prescribed anti-psychotic medication to sedate him and control his impulsiveness. (10 RT 2501-2503.) . Dr. Cherkas thought that being hit on the head byhissister could have caused appellant’s brain damage,particularly given the subsequent seizures, but it was also possible this was coincidence. (10 RT 2500.) 34 Cherkas acknowledged that the EEG exams, on which the doctors had relied first to diagnose appellant’s brain damage and thento find that it had ~~ tmprovedseveralyearslater, are not an effective way to identify brain damage compared to modern brain imaging techniques. (10 RT 2515- 2516.) Cherkas had examined appellant beforetrial only for competency. (10 RT 2517.) He did not administer any other tests. (10 RT 2510.) Today, Cherkas thought, appellant would be-diagnosed with attention deficit disorder (ADD), an anxiety disorder, and someantisocial characteristics. (10 RT 2506.) Cherkas thought appellant might have been diagnosed as an adult with intermittent explosive disorder. (RT 2506.) He would be treated with better drugs today also - Ritalin and anti-epileptic drugs like Gabapentin and Depakote that also-reduce impulsiveness. (10 RT 2511.) UCLAProfessor James Diego Vigil, an expert on gangs,testified that someonein appellant’s position, from a dysfunctional_family and with a father who had been in a gang wasparticularly vulnerable to gang involvement. (10 RT 2599, 2632, 2635, 2640-2642.) Appellant’s juvenile parole-officer, John Kersey,testifiedthat he first met appellant in-1971. (10 RT 2697.) He characterized appellant as highly institutionalized; he learnedthe ropes and ultimately felt more comfortable in prison than on the outside. Kersey continued to correspond with appellant when he went to adult prison in 1972. He-described how appellant had earned an AA degree while in Soledad. Kersey had known hundreds or thousands ofyoung men in trouble, and appellant stood out for his potential. (10 RT 2706.) Despite his promise, however, appellant did stupid things to go back to prison - such as robbing the samestore in his own neighborhood more than once. (10 RT 2712.) Kersey considered 35 appellant a friend, even though he did not condone his behavior. (10 RT 2710.) Whenappellant was released from prison a few years earlier, Kersey picked appellant up at Tehachapi, and appellant and his wife stayed with Kersey for a couple of days while Kersey helped him by taking him to the DMV,the Social Security Administration, and other errands. (10 RT 2705.) Kersey had not known about the Apodaca or Facundo murders but did not think it necessarily would have changedhis treatment of appellant. (10 RT 2710.) Margaret Trujeque, appellant’s ex wife, testified that she and appellant had planned to make a life together when he wasreleased in 1997. (10 RT 2713, 2717.) Appellant got a job and was living with his mother, helping her out. (10 RT 2722) Then, Mildred had a stroke in November 1997. She wasin the hospital, and appellant was very emotionally distraught. (10 RT 2717-2718.) At the time of the trial, Mildred was extremely ill and confined to a wheelchair, having recently suffered two strokes, a heart attack and bypass surgery. (10-RT 2681-2682.) Finally, appellant’s daughter Diana, 22 at the timeoftrial, testified. (10 RT 2757.) Diana had almost never seen her father-in person, though-he wrote to her constantly and spoke to her-on the phone whenever he-could as Diana was growing up. (10 RT 2758-2759.) Appellant’s letters were a. source of strength to Diana. Her mother, appellant’s first wife, was a heroin addict, and Diana andhersiblings were frequently removed from their mother’s care. (10 RT 2760-61.) Diana was abused by her mother’s boyfriends and appellant got Diana’s maternal grandmother to assume guardianship of her. (10 RT 2762.) Despite appellant’s efforts, Diana rebelled, ran away from home and began using drugs herself. (10 RT 2766- 69.) For a time, appellant arranged for Dianato live with Charlie and Elena 36 Trujeque, but she ran away from them as well. (10 RT 2772.) Dianafinally went to prison and eventually found religion and got sober. (10 RT 2773- ~~74.)Atthetimeoftrial, Dianawasstillsober and caring for her daughter - appellant’s granddaughter. (10 RT 2774.) 3. Closing Argument In his penalty phase closing, the prosecutor argued, “the most important thing that sets a themeto this closing argumentis the defendant's letter” [to Gil Garcetti]: And you haven't had the opportunity to read this portion because it was blocked out before because it wouldn't have been right to give it to you in guilt phase. But he says in his letter that he writes to the district attorney, ‘in any case,sir, if you don't have enough balls and guts to give me whatI deserve by sending myass to the gas chamber, then my only other recourse is to kill someoneelse once I return to prison in order to finally receive the ultimate punishment eventhe man upstairs knowsI deserve.” (11 RT 2957.) He then urged the jurors to sentence appellant to death, because “by doing so, you know,in your mindas jurors that you've done everything you cansothat that last sentence doesn't happen.” (Jbid.) #4 The jury returneda death verdict,and appellant was sentenced-to death. This appeal follows. // // // 37 ARGUMENTI PAGES 38 THROUGH 56 FILED UNDER SEAL 38 IL. THE TRIALCOURTERRONEOUSLYAPPLIEDPENAL THE STATE TO REFILE THE PREVIOUSLY BARRED APODACAMURDERCHARGEINVIOLATION OFTHE EX POST FACTO CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS Appellant’s conviction for the second degree murder of Raul Apodaca must be vacated because the state exceeded the permissible number. oftimes forrefiling a previously dismissed charge, improperly reviving the previously barred Apodaca murder charge byretroactively applying section 1387.1 in violation of the ex post facto clauses ofthe state and federal Constitutions. (U.S. Const., art. 1, § 10, 8" & 14" Amends.; Cal. Const., art 1, § 9.) The multiple-murder special circumstance, based upon the invalid second degree murder conviction, must also be vacated. (U.S. Const., 8 & 14° Amends.) A. Introduction The state was improperly allowedto prosecute appellant for the . murder of Raul Apodaca, even though there-had beenat least two prior dismissalsof the charges against appellant,barring further refiling under section 1387.'7 The-state, concedingthat there had been two prior Section 1387 provides: (a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or995, is a bar to any other prosecution for the same offenseif it is a felonyor it is a misdemeanorcharged together with a felony and the action has been previously terminated pursuantto this chapter, or Section 859b, 861, 871, or 995,orif it is a misdemeanornot charged together with a felony, except in those felony cases, 57 dismissals so that a third refiling was barred by section 1387,relied on section 1387.1, which was enacted in September 1987 and created an exception allowing the prosecution a third refiling of felony charges if the felony was a violent felony as defined in section 667.5 andifthe charges had been dismissed due to “excusable neglect” by the prosecution." The defense argued below,first, that retroactive application of section 1387.1 violated the ex post facto clause; second, that even if section 1387.1 could be appliedretroactively, there had been three prior dismissals in this case, so that the current charges were also barred undersection or those cases where a misdemeanoris charged with a felony, where subsequentto the dismissal of thefelony or misdemeanorthe judge or magistrate finds that substantial new evidence has been discovered by the prosecution which would not have been knownthroughthe exercise of due _diligence at or prior tothe time of termination ofthe action or that the termination of the action wasthe resultof the direct intimidation_of a material witness, as shown by a preponderance. of the evidence. Section 1387.1, enacted in 1987, provides: (a) Where an-offense is a violent-felony, as defined in Section 667.5 and the prosecution has had twoprior dismissals,as defined-in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to | excusable neglect. In no case shall the-additionalrefiling of charges provided underthis section be permitted where the conductofthe prosecution amountedto bad faith. (b) As usedin this section, "excusable neglect" includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses. 58 1387.1; and third, that even if there were only two prior dismissals, neither was due to excusable neglect. ~~BLProceduralHistory ~ oo Appellant wasfirst charged on February 5, 1987, by felony complaint under the case number A795989 (2 CT 349-352), with the murder of Raul Apodacain violation of section 187, subdivision (a), with a special circumstance alleged under section 190.2, subdivision (a)(2), for a 1971 second degree murder conviction.’* Jesse Salazar was chargedin the same complaint with both the murder of Raul Apodacaand, in count two, with the September 1985 murder of another man, Ronald EugeneDiaz.(2 CT 349-352.) The warrant was recalled and the case dismissed as to appellant on March 13, 1987. (2 CT 349.) On March 25, 1987, the state re-filed the first degree murder charge against appellant under case number A798706,again alleging the prior- murderspecial circumstance. (2 CT 353-54.) The preliminary hearing was ‘held April’8 and 9, 1987. (2 CT 358-424.) The-prosecution sought a continuance because the purported eyewitness to the stabbing hadfailed to appear. There wasa dispute whether the witness had been properly served: a subpoenahadbeenleft with the witness’ mother, but he hadfailed to pick it up as he had purportedly promised to-do. (2 CT 364, 368.) The magistrate declined to find good cause for a continuance based-onthe witness failing to appear but allowed the prosecution to proceed while they continued to look for the witness. (2 CT 368, 370-71.) The prosecution then called Richard Rivera who owned the East Los “This was for the murder of Allen Rothenberg - a conviction thatis separately challenged in ArgumentI, supra. 59 Angeles upholstery shop where Apodaca had been stabbed. (2 CT 373.) Riveratestified that on the night of January 22, 1987, a group of friends — Jesse Salazar, appellant, Luis Villalobos, Raul Apodaca, Frank [last name unknown], Willie Contreras, Al Hernandez, and Robert DeAlva — returned to the upholstery shop at 2 a.m. after drinking at the Quiet Cannonbar. Several of the men began playing poker. (2 CT 373-74.) A fistfight broke out between Salazar and Frank during the game. (2 CT 376.) Apodaca and ~ Villalobos broke up the fight. (2 CT 375-76.) After that, everyoneleft the upholstery shop except Rivera, Salazar, appellant, Apodaca, and Robert deAlva. (2 CT 377.) Rivera wentinto the restroom. (2 CT 379.) When he came out a couple of minutes later, Apodaca was lying on the floor and appellant and Salazar were gone. (2 CT 379, 381.) Rivera looked outside and saw appellant and Salazar walking rapidly down the street. (2 CT 382.) The coroner testified that the cause of death was a stab woundto the chest. (2 CT 402.) Apodacahad four other superficial, non-penetrating- woundsto his chest; round to oval in shape all of which were “mosttikely” made by the same instrument as the stab wound. (2 CT 401, 403.) There -was another, much’smaller puncture woundat the back of the neck 1/8of an inch deep, which-was “most likely” made by a-different instrument but conceivably could have been made by the sameinstrument-that inflicted the other wounds. (2 CT 401-02.) The preliminary hearing recessed at 2 p.m., over defense objection. (2 CT 409.) Whenthe hearing resumed tHe next morning, the prosecution announced it had been unable to locate DeAlva and rested. (2 CT 411.) Based on the evidence presented at the preliminary hearing, Magistrate Lamb held appellant to answeronly for the lesser offense of manslaughter. (2 CT 421.) 60 On April 24, 1987, the People nevertheless filed an information in superior court pursuant to section 739, once again charging appellant with circumstance allegation.'” (2 CT 425-26.) On June 23, 1987, the Superior Court granted appellant’s motion to dismiss under section 1382 whenthe prosecution stated it was unable to proceed becauseit still could not locate its witness.'© (2 CT 428.) The prosecution subsequently reached a plea agreement with appellant’s co-defendant, Jesse Salazar, who had been held to answerfor murder based on his admission to an associate that he had stabbed someone in a fight at Ricky’s upholstery shop, and the person had died. (2 CT Supp.Two 237-238, 268.) Salazar was allowedto plead guilty to voluntary manslaughter ~ the same offense for which appellant had previously been held to answer — and received a sentence of credit for time served and five years’ probation. (2 CT Supp.Two 342-348,350.) Section 739 provides: Whena defendant has been examined and-committed, as provided in Section 872,it shall be the duty of the-district attorney of the county in whichthe offenseistriableto file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitmentor any offense or offenses shownbythe evidence taken before the magistrate to have been committed. The information shall be in the nameofthe people of the State of California and subscribed by the district attorney. '°Section 1382 providesin pertinentpart that a case must be dismissed if the defendantis not broughttotrial within 60 days after an informationis filed. 61 In September 1987, after the charges against appellant had been dismissed in superior court, the legislature enacted section 1387.1, which allows the prosecution to refile after three (rather than two)prior dismissals if the defendant is charged with a violent felony as defined by section 667.5 and oneofthe prior dismissals was due to excusable neglect. The Apodacacase was apparently dormant until 1998 when appellant was arrested on unrelated charges and offered to confess to the Apodaca homicideifthe police would ensure he got the death penalty, because — appellant told the officers — he preferred to be executed than die an old man in state prison. (6 RT 1420, 1492-1493.) Thestate then charged appellant again withthe first degree murder of Apodaca,alleging the special circumstances of multiple murder and prior murder. (1 CT 1-3.) Appellant’s counsel filed a motion to dismiss count two of the information, the Apodaca murdercharge, asserting that the prosecution had exceeded the allowed numberofrefilings under both sections 1387 and. 1387.1. (2 CT 333-348 [Defendant’s Motion to Dismiss Count II of the AmendedInformation and Special Circumstance Allegations Arising Therefrom].) In their response, the prosecution conceded-there had-been two dismissals ofthe Apodaca case in 1987. (4 CT 923-940 [People’s Opposition to Motion to Dismiss Count II].) Whether appellant could be prosecuted for that charge therefore turned on whether (1) section 1387.1 could be applied retroactively; (2) if it could, whether there hadactually been three rather than two dismissals so that the prosecution would be barred even undersection 1387.1; or (3) if there had been only two dismissals, whether either was due to excusable neglect as required by section 1387.1. Before ruling on the motion,the trial court held a hearing at which 62 the prosecution put on its evidence to show thatthe prior dismissals were due to excusable neglect. At that hearing, Robert Schraeder, a former “investigator forthedistrict attorney’s office “Hardcore Gang Unit”testified as did Assistant District Attorney Sandy Harris and Los Angeles Police Department homicide investigator Birl Adams. Schraeder had no independentrecollection of the Apodaca case or what work he had done for it. (4 RT 816.) Harris and Adamsexplainedthat they had been unable to personally serve the one eyewitness to the homicide, Robert DeAlva. (4 RT 853, 863.) Because DeAlva had not been properly served, the prosecution was unable to obtain a bench warrant. (4 RT 865.) These same problems were why the prosecution agreed to allow Salazar to plead guilty to voluntary manslaughter and receive a sentence of credit for time served and probation. (4 RT 848-849.) Atthe conclusion ofthe hearing, the trial court found there was excusable neglect within the meaning of section 1387.1. (4 RT 913.) After further arguments of counsel, the trial court also ruled that the case had been properly refiled under section 1387.1 because there had been only two prior dismissals rather than three. (4 RT 981-982.) The court accepted the prosecutor’s argumentthatthe magistrate’s order declining to hold appellant to answer for murder wasnot a dismissal or termination of the action for purposes of section 1387 -because appellant had been held to answerforthe lesser included offense of manslaughter.'’ (4 RE 981-982.) "In its written opposition, the state argued the magistrate had not made factual findings but had merely “formed the legal conclusion that the evidence wasinsufficient to show probable cause” for the murder charge and “[t]hus the reduction to the lesser included offense of voluntary manslaughter did not preclude the District Attorney pursuant to Penal Code section 739 from filing the charge ofmurder.” (4 CT 924-925.) This 63 The court agreed thatits ruling included an implicit finding that section 1387.1 applied retroactively and did not violate the ex post facto clause. (4 RT 984.) Appellant sought a writ of prohibition from the Second District Court of Appeal. (1CT Supp. V 64 - 3 CT Supp. V 871.) The petition was summarily denied, as was appellant’s petition for review to this Court.’* (4 CT 953,959.) #eK In this case, the prosecution did not dispute that the Apodaca case had been dismissed twice: first, when case number A795989 was dismissed at the prosecution’s request in March 1987; and second, when the superior court judge dismissed case number A798706 in June 1987, under section. 1382. (4 CT 923, 926.) The prosecution conceded that “[t]he current action case number VA048531 is the third filing” but maintained it was “permitted pursuant to Penal Code section 1387.1.” (4 CT 923.) The sole areas of disagreement were whether section 1387.1 could’ _ be appliedretroactively to appellant’s case, and, if it could, whether the magistrate’s order holding appellant to answer for the lesser charge of manslaughter when the prosecution refiled under case A798706 was “an order terminating the action” pursuant to section 871, making the misses the point entirely, as appellant never disputed that the prosecution could have preperly refiled the murder charges under section 739, ifthe case had not previously been dismissed — as the prosecution concededit had — before being refiled in case number A798706. '8Summary denialof a writ petition does not constitute law of the case and therefore does not preclude review of the same issues on direct appeal. (Kowis v. Howard (1992) 3 Cal.4th 888, 899; accord People v. Jones (2011) 51 Cal.4th 346, 370, fn. 4.) 64 subsequent dismissal in superior court the third rather than the second dismissal and thus barring refiling even undersection 1387.1. CC.”TheRetroactive ApplicationofSection1387.1to= Appellant Violates the Ex Post Facto Clauses of the State and Federal Constitutions The prosecution did not dispute that, under the two-dismissalrule of section 1387, the June 1987 dismissal would have been “a bar to any other prosecution for the sameoffense.”’? (4 RT 964.) The prosecution relied expressly on section 1387.1, and its exception allowing violent felony chargesto be refiled a third time when oneofthe two prior dismissals was due to excusable neglect. (4 CT 927-934.) Thedefense argued vigorously that applying section 1387.1 retroactively violated the ex post facto clauses of theCalifornia and United States Constitutions. (4 RT 925-927, 934.) 1. Section 1387.1 Was Not Intended to Apply Retroactively UnderCalifornia law,“[a] new statute isgenerally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.” "In arguing that the statute’s purpose of preventing harassment of defendants wasnot offended by the prosecution in this case, the prosecutor noted that “the current information wasfiled based upon newly discovered information, namely the confession of the defendant. After approximately eleven years and only after the newly discovered evidence wasthe case refiled.” (4 CT 926-927.) Thetrial court similarly commentedin passing that the thatnewestfiling is “arguably because of newly discovered evidence,” (4 RT 944), but the prosecution neverassertedthat there-filing wastherefore permissible under section 1387, and the court made no finding, as required by thestatute, that “substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence ator prior to the time of termination of the action.” (Pen. Code., § 1387, subd. (a)(1).) 65 (People v. Hayes (1989) 49 Cal.3d 1260, 1274, quoting Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1209; Pen. Code, § 3.) Ifa statute is ambiguous on the question ofretroactivity, it must be construed as “unambiguously prospective.’” (Alch v. Superior Court ( 2004) 122 Cal.App.4th 339, 400, citing Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 and quoting INS v. St. Cyr (2001) 533 U.S. 289, 320, fn. 45.) This is consistent with the principle that a statue should be construed, when possible, to “render it valid ... or free from doubt as to its constitutionality....” (People v. Lowery (2011) 52 Cal.4th 419, 427, citing Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 846, and Jn re Smith (2008) 42 Cal.4th 1251, 1269 [our “commonpractice”is to Geeemploy this statutory construction device, “‘when reasonable,to avoid difficult constitutional questions’”].) . Althoughthe prosecution asserted below that “[r]etroactive application of Penal Code section 1387.1 clearly appears from the statute _and the Senate-Billitself’ (4 CT 927), section 1387.1 does not in fact contain:an express-retroactivity clause, nor is fhere a “clear and compelling” implication that the Legislature intended it to apply retroactively. The legislative history is silent, and there are no reported: decisions addressing the issue of retroactivity. (See 3 CT 621-4 CT 922 [Legislative Intent Service for California Penal Code Section 1387.1]) Section 1387.1 was enacted in response to an Alameda County murder case, People v. Mackey (1985) 176 Cal.App.3d 177, in which the appellate court ordered the defendant discharged_on the groundthat his prosecution wasbarred by section 1387, the charges having been| dismissed twice due to errors by the prosecution. (4 CT 936-937 [excerpt of Report of California Senate Committee on the Judiciary regarding SB 709 1987-1988 66 Regular Session].) The new provision was intended to allow the state one additional opportunity to refile charges that were dismissed due to the prosecution’s “excusable neglect,” provided there wasno bad faith. 2. Applying Section 1387.1 Retroactively Violated the Ex Post Facto Clause Evenif the legislature intendsto apply a statute retroactively, it may not do so if such application would violate the ex post facto clause of the United States or California Constitutions: Article I, section 10, clause 1 of the federal Constitution states: “Nostate shall --- pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant anytitle of nobility.” (Italics added.) Similarly, article I, section 9, of the California Constitution provides: “A bill of attainder, ex postfacto law, or law impairing the obligation of contracts may not be passed.”(Italics added.) (People v. Grant (1999) 20 Cal.4th 150,158.) The California ex post facto clause is interpreted “no differently than its federal counterpart.” ( Ibid.) Both provisions “prohibit[ ] any_legislative act that criminalizes conduct innocent_when done, makes-a crime greater than when done, increases or changes the punishment,oralters the rules of evidence to permit conviction on lesser or different evidence than when the crime was -committed.” (People v. Brown (2004) 33 Cal.4th 382, 391, citing Carmell v. Texas (2000) 529 U.S. 513, 522-525.) Both parties correctly analogized section 1387.1 to a statute of limitations. (4 RT 925-926; 4 CT 930-934.) The prosecutor. argued that “an alteration extending a limitation period doesnotviolate either the State or Federal ex post facto clauses” because it does notalter the definition of the crime or abolish a defense within the meaning of ex post facto clause analysis. (4 CT 930-934.) 67 In Stogner v. California (2003) 539 U.S. 607 (Stogner), however, the United States Supreme Court disagreed and held squarely that a law which revives a previously-barred prosecution violates the ex post facto clause. Quoting Justice Chase’s seminal opinion in Calder v. Bull (1798) 3 Dall. 386, [1L.Ed. 648], the Court found that reviving a barred prosecution falls into the category of prohibited ex post facto law “that aggravates a crime, or makesit greater than it was, when committed.” (Stogner, supra, 539 U.S.at p. 612, quoting Calder v. Bull, supra, 3 Dall. at pp. 390-391, [1L.Ed. 648].) These categories of impermissible ex post facto laws arose from the abuses of the British parliament, which had“inflicted punishments, where the party wasnot, by law,liable to any punishment.” (Stogner, supra, 539 U.S. at p. 612, quoting Calder v. Bull, supra, 3 Dall. at p. 389, [1L.Ed. 648] [italics omitted].) Reviving a previously time-barred offense, the Court reasoned, “enabled punishment where it was not otherwise available ‘in the ordinary course oflaw,’” much like repealing an amnesty. (Stogner, supra, 539 U.S. at p-614, quoting 2 Wooddeson, A Systematical Viewofthe Laws of England (1792) p. 638 ; id. at p..619.) Asthe parties recognized, section 1387 operates precisely like a statute of limitations. It expressly creates “a bar to any other prosecution forthe same offense.” (Pen. Code, § 1387.) The bar arises not from_the passage of time but from the prosecution’s prior attempts to prosecute the offense. Undersection 1387, the prosecution was allowed two attempts to prosecute appellant. Whenthe state chose to initiate a second prosecution without securing the witness it knew was necessary, and the case was dismissed a-second time, the state was barred from attempting “any other prosecution for the same offense” — thatis, the twice-dismissed murder charge. (Pen. Code, § 1387.) Significantly, as discussed further below,the 68 state was not barred from prosecuting appellant for manslaughter — the offense for which the magistrate held him to answer, and to which the prosecution accepted a plea from appellant’s co-défendant. Thus, by operation of section 1387, appellant was not by law liable for the twice-dismissed murder charges, and the new exception created by section 1387.1 to allow prosecutors a third bite at the apple was not properly applied retroactively to appellant. D. EvenIf Section 1387.1 Could Properly Be Applied Retroactively,Prosecution of the Apodaca Murder Charge Was Barred Because it Had Been Dismissed Three Times As noted above, the parties agreed the case had been dismissed at least two times. The defense, however, maintained that the case had actually been dismissed three times. Thedispute centered onwhetherthe magistrate’s_order holding appellant to answer-only for manslaughter constituted a termination of the action within the meaning of sections1387 and 1387.1 so that the superior court’s ultimate-dismissal of the case under- section 1382 wasa third dismissal, barring appellant’s-prosecution-even under-section 1387.1. As notedabove,section 1387 provides in pertinent part: “An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995,”° is a bar to any otherprosecution for the sameoffenseifit is a felony. Section 859b providesthat a complaint shall be dismissed if the preliminary examination is not held within specified time limits. Section 861 provides that the complaint will be dismissed if the preliminary examination is not conducted in a single session or postponed for good cause. Section 871 provides that “[i]f, after hearing the proofs, it appears either that no public offense has been committed or that there is not 69 ..and the action has been previously terminated pursuantto this chapter, or Section 859b, 861, 871, or 995.” (Pen. Code, § 1387, subd. (a).) This Court has observedthat “section 1387 ‘has been amendednine times.since its adoption in 1872, and the resulting 108-word, 13-comma, no period subdivision is hardly pellucid....’” (People v. Traylor (2009) 46 Cal.4th 1205, 1212, quoting Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018.) The case law applying section 1387 has not necessarily clarified the statutory language. 1. Holding Appellant to Answerfor a Lesser Offense was an Order Terminating an Action under Section 1387 A magistrate’s refusal to hold a defendant to answerfor a charged offense, including holding the defendant to answer for a lesser offense, or holding the defendant to answer for some butnotall of the charged offenses, is considered a dismissal pursuant to section 871,-even if there is no formal order of dismissal entered. (/n re Williams (1985) 164 Cal.App.3d 979, 983 [“Despitethe all-or-nothing wording of (section 871), it obviously applies where the magistrate finds insufficient evidence ofand dismisses one count, but sufficient evidence ofothers”; accord Bodnerv. Superior Court (1996)-42 Cal.App.4th 1801, 1804, 1806 (Bodner) [magistrate held defendant to answer for lesser related offense]; People v. Superior Court (Martinez) (1993) 19-Cal.App.4th 738, 744 (Martinez); sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged. . .” Section 995 provides for the dismissal of an information when the defendant has not been legally committed by a magistrate or when the defendant has been committed without reasonable or probable cause. 70 Brazell v. Superior Court (1986) 187 Cal.App.3d 795, 800 (Brazell).) Whether such an order“terminates the action” within the meaning of section 1387, depends on whether the charge has already been dismissed — once before. In Ramos v. Superior Court (1982) 32 Cal.3d 26, 36 (Ramos), this Court held that section 1387 barred prosecution of a special circumstance allegation that had been twice dismissed by a magistrate”! before the dismissed charge wasrealleged in superior court under section 739. Section 739 permits the district attorney to file an information charging the defendant “with either the offense or offenses namedin the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.” (Pen. Code, § 739 [italics added].) Thus, the prosecutor may include in the information a charge that was dismissed by the magistrate, if “— at least in the district attorney's view - [the charge] was supported by the evidence presented at the preliminary hearing.” (Ramos, supra, 32 Cal.3d at p. 34.) In Ramos, following a preliminary hearing on a complaint charging Ramosand two co-defendants with murder and the special circumstance of- financial gain, the magistrate found the evidenceinsufficient as.to Ramos and dismissedall charges against him. (Ramos, supra, 32 CaL.3d at p.29.) *!Ramos addressed the 1980 amendments to section 1387 which “establish[ed] clearly that a magistrate, as well as a judge, may ‘make a dismissal that serves as an effective bar to further prosecution.’” (Ramos, supra, 32 Cal.3d at p. 30.) Before those amendments, a magistrate’s authority to dismiss a case had been called into doubt by People v. Peters (1978) 21 Cal.3d 749, 753, which had held a magistrate was not a court within the meaning of section 1385 and other provisions authorizing dismissal of charges by a “court.” The 1980 amendmentsclarified that magistrates were judges and therefore empowered to dismiss cases. 71 The prosecution filed a new complaint a few days later, realleging the previously dismissed charges against Ramos. (/bid.) A second preliminary hearing washeld in frontof a different judge who held Ramosto answer on the murder charge but dismissed the special circumstanceallegation. (/bid.) The prosecution filed an information in superior court undersection 739, again charging Ramos with murderandthe financial gain special circumstance. ([bid.) Ramos moved to dismiss the special circumstance allegation on groundsofinsufficient evidence under section 995 and/orto bar prosecution of the special circumstance under section 1387 on the groundit had been twice dismissed. (/bid.) | Thetrial judge heldthat neither section 995 nor section 1387 applied to a special circumstanceallegation. (Ramos, supra, 32 Cal.3d at pp. 29- 30.) This Court disagreed, and heldthat the magistrate’s dismissal of a special circumstance under section 871 was an “order terminating an action” under section 1387. (/d. at 34.) The special circumstance-allegation had thus been twice dismissed within the meaning of section 1387, and filing an information realleging the dismissed special circumstance under section 739 was an impermissible “other prosecution”for the same offense. (Id. at 36.) This Court addedthatits ruling did not leave the prosecution “without means to challenge a second order of a magistrate dismissingall or a portion of a complaint,” because the prosecution could have sought review of the magistrate’s ruling under section 871.5 rather than simply refiling the dismissed charges under section 739.” (Ramos, supra, 32 Section 871.5 provides that when an action is dismissed by a magistrate and maynot berefiled under section 739 in the superiorcourt, the district attorney may movein superior court within 15 days to compel 72 Cal.3d at p. 36.) Analogizing to Ramos, the Court of Appeal in Bodnerheld that ~ holding a defendant to answerfor a lesser offense constituted a termination of the action for purposes of section 1387. (Bodner, supra, 42 Cal.App.4th at pp. 1804, 1806.) In thefirst action against the defendant, the magistrate declined to hold the defendant to answer on a felony complaint charging two counts of attempted murder, finding insufficient evidence of an intent to kill. Ud. at p. 1803.) The magistrate held the defendant to answer instead on one countof a lesser offense - assault with a deadly weapon.” ({bid.) Pursuant to section 739, the district attorney filed an information again alleging attempted murder. The superior court dismissed those- charges on the defendant’s motion-undersection 995 , without objection from the prosecution. The district attorney subsequently initiated a second prosecution,under a new case number, again alleging two counts of attempted murder. Following the second preliminary hearing,the magistrate again held the defendant to answeronlyfor two lesser charges of assault with a deadly weapon. Whenthe prosecution filed another information pursuant to section 739, the defendant moved to dismiss under section 1387, contending the second magistrate’s order was a second termination that barred further prosecution. (/d. at p. 1803.) The prosecution in Bodner argued that, because the magistrate “did not dismiss the action entirely but held defendant to answerfor lesser related: charges,” the order did not constitute an order “terminating an action the magistrate to reinstate the complaint. (Pen. Code, § 871.5, subd.(a).) *The opinion does not indicate whetherthe assault charges were alleged separately in the complaint. 73 pursuant to Section 871,” and filing an information undersection 739 including the dismissed charges was merely a continuation of the same action and not an “other prosecution” within the meaning of section 1387. (Bodner, supra, 42 Cal.App.4th at p. 1804.) The Court of Appeal noted correctly that precisely the same argument had beenrejected by this Court in Ramos. (Bodner, supra, 42 Cal.App.4th at p. 1804.) Adhering to Ramos, the court held that the second order by a magistrate holding the defendant to answer on lesser charges was indeed a secondtermination within the meaning of section 1387, “bar[ring] the People from simplyrefiling the dismissed charges under section 739.” (/d. at pp. 1804-1805, quoting Ramos, supra, 32 Cal.3d at pp. 36-37.) Similarly, in Brazell, supra, the Court of Appeal held that a magistrate’s refusal te hold a-defendant to answer on murder charges which had-previously been dismissed under section 995 constituted a second -termination of the action and barred the prosecution from filing another information in superior court undersection 739, charging her with murder; the prosecution could pursue only the remaining charges on whichthe defendant had been held to answer. (Brazell, supra, 187 Cal.App.3dat p. 800.) Finally, in Martinez, supra, three defendants were charged with murder and conspiracy to commit insurance fraud. (Martinez, supra, 19 Cal.App.4th at p.742.) Following a preliminary hearing, the magistrate held one defendant to answeron all charges, but held Martinez and another defendant to answer only on the insurance fraud charges. (/bid.) The prosecution then filed an information charging the defendants with murder. (Ibid.) In the meantime, the prosecution obtained an indictmentalleging 74 the sameoffenses. (/d. at p. 743.) The judge dismissed the information and arraigned the defendants on the indictment. (/bid.) the magistrate failing to hold him to answer on the murdercharge in the complaint and second whenthe prosecution dismissed the information in superior court — and thus the indictment was an impermissible thirdfiling. (Martinez, supra, 19 Cal.App.4th at p.743.) The Court of Appeal held that “a magistrate's (first) dismissal under section 871 is not by itself a termination of the action when followed by the filing of an information under section 739.”* (Martinez, supra, 19 Cal.App.4th at p. 746.) In these circumstances, “the action remains alive” unless and until the superior court dismisses the information. (/d. at p. 745.) The court reasonedthat its interpretation was consistent with Ramos, whichhad “‘limit[ed] its holding to the circumstance of a second magistrate's-dismissal order,” and specifically declined to express a view on the circumstance in-whicha first dismissal by a magistrate was followed by afiling of dismissed charges under section 739 and a dismissal under section 995 ofthe refiled charges. (/d. at p. 746 [original italics].) The court rejected Martinez’ argumentthat the prosecution should have been required to proceed under section 871.5 rather than section 739, emphasizing that it was already established that section 871.5 did not Arguably, Martinez’ entire discussion. is dicta in that the case could have been resolved with the narrower holding that section 1387 does not apply at all to an order that simply dismissed an information in favor of a superseding indictment. (Martinez, supra, 19 Cal.App.4th at pp. 748-749.) But even if Martinez’ reasoning is applied, the magistrate’s refusal to hold appellant to answer for murder constituted a second dismissal in the procedural posture of this case, as explained above. 75 prohibit the prosecution from refiling charges under section 739 following a first dismissal by a magistrate. (Martinez, supra, 19 Cal.App.4th at p. 749, citing People v. Encerti (1982) 130 Cal.App.3d 791, 797-798 and Ramos, supra, 32 Cal.3d at p. 35.)° The Court of Appeal therefore concluded: The procedure in section 871.5 was not even available to the People, much less mandatory. The 1982 urgency amendment to section 871.5 makesclear that its remedy is intended for situations in which the People cannotusesection 739, for example, (1) the magistrate dismisses all the charges (see People v. Luna (1983) 140 Cal.App.3d 788, 793, fn. 3); (2) the dismissed and nondismissed counts are not transactionally related (People v. Slaughter [1984] 35 Cal.3d [629], 633); or (3) the magistrate's dismissal is the second dismissal. (Ramos v. Superior Court, supra, 32 Cal.3d at pp. 35-36.) (Martinez, supra, 19 Cal-App.4th at p. 750.) Commentators have harmonized the case law as follows: First, when the prosecution chooses, following a magistrate’s dismissal of an action “to start over with a new action by filing a second complaint,” then the magistrate’s-dismissal constitutes a termination ofthe first action. (5 Witkin, Cal. Crim-Law (3d ed. 2000) Criminal Trial § 423, p. 600, citing Ramos, supra, 32 Cal.3d at p. 35, Martinez, supra, 19 Cal.App.4th at p. 744.) Second, when the presecution chooses instead “to proceed in the *5Ramos describedsection 871.5 primarily as a remedy available to the People after a second dismissal by a magistrate, the condition under which Ramosheld the People could not use section 739.” (Martinez, supra, 19 Cal.App.4th at p. 749.) Section 871.5 was also amended to makethis explicit, providing that the prosecution could seek reinstatement“[w]hen an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389, or a portion thereofis dismissed pursuant to those same sections which may not be charged by information under the provisions ofSection 739....” (Id. at p. 750 [originalitalics], quoting section 871.5.) 76 same case by filing an information” undersection 739, realleging the dismissed charges, “the magistrate's dismissal does not constitute a prior Cal.App.4th at p. 745 [magistrate dismissed one of two counts, prosecution filed information charging both counts; subsequent dismissal under section1385 wasonlyfirst termination].) Rather, the subsequent dismissal ofthat first case in superior court would constitute only a single dismissal, and the prosecution would be permitted to file one more complaint. Third, “[w]here the action hasbeen terminated in a previous prosecution,” the magistrate's subsequent“refusal to hold the defendant to answeronearlier dismissed charges,” constitutes a second termination of the action within the meaning of section 1387, “even though the magistrate holds the defendant to answeron other charges and the prosecution attempts to . reinstatethe complaint under P.C. 739.” (/d. at p. 601 [originalitalics], citing Ramos, supra, 32 Cal.3d at p. 35, Martinez, supra, 19 Cal.App.4th at p. 744.) | Appellant’s case falls precisely into the third-scenario. Fhe prosecution dismissed_the first action on its own initiative, before the preliminary hearing. The state properly conceded below thatthis was one dismissal. Consequently, under Ramos and Martinez, supra, the magistrate’s decision in the second action, holding appellant to answerfor a lesser offense,-constituted a seconddismissal and the refiling of murder charges under section 739 was “another prosecution” under Ramos. The district attorney argued below, however, andthetrial judge agreed, that the instant case could be distinguished because appellant was held to answerfor a lesser included offense as opposedto a lesser related offense, so that there was no dismissal under section 871 and therefore no 77 remedy undersection 871.5. (4 RT 960-965, 975-978, 981.) The district attorney also complainedthat there had been no actual ruling “on the merits” concerning the sufficiency of the evidence because the magistrate had ruled whenthe prosecution was missingits critical witness. (4 RT 944.) Both of these purported reasons for denying the defense motion are utterly without support in the law. | First, section 1387 is not limited to rulings “on the merits” + the statute includes terminations of actions on a variety of grounds, including voluntary dismissals by the prosecution. Indeed, one of the central purposes of the statute is to prevent “the evasion of speedytrial rights through the repeated dismissal and refiling of the same charges.” (People v. Traylor, supra, 46 Cal.4th at p. 1213, quoting Burris v. Superior Court, supra, 34 Cal.4th at p. 1018.) Such dismissals have nothing te-do with a “judicial determination[] on the merits.” (4 RT 944.) Second, pursuant to section 739, the prosecution may reallege charges dismissed by a magistrate so long as the magistrate-has held the. defendant+toanswer for any-transactionally related offense. (Peoplev. Slaughter, supra, 35 Cal.3d at pp. 640-641 [“The choicebetween these alternatives [sections 871.5 and 739]depends upon whether the magistrate found probable cause to hold the defendant ona transactionally related offense.”]) It is thus a distinction without a difference whetherthe magistrate held the defendant to answerfor a lesser included offense ora lesser related offense, as both would be transactionally related to the greater offense originally charged. In both instances the factor that determines whether further prosecution is barred is whether the chargesat issue had already been dismissed twiceat the point that the prosecution soughtto 78 reallege them undersection 739. Evenifthe magistrate’s order holding appellant to answer for a that the prosecution wasentitled to another bite at the apple under section 739.77 In insisting that it was entitled to a “remedy”undereither section 739 or section 871.5 for the magistrate’s order holding appellant to answer for the lesser offense of manslaughter, the prosecution ignoredentirelyits In People v. Williams (2005) 35 Cal.4th 817, 828, this Court held that a magistrate’s order reducing a ““wobbler” felony to a misdemeanor undersection 17, subdivision (b)(5), was not reviewable undersection 871.5 because such an order wasnot includedin the statute’s list of orders subject to review. The Court distinguished People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, in which the Court ofAppeal held that a magistrate’s order reducing a “straight” — i.e. non-wobbler — felomy to a misdemeanor was a dismissal under section 871 and hence reviewable undersection 871.5. (People v. Williams, supra, 35 Cal.4th-at p. 828.) The Court has not, however, overruled-or_disapproved cases such as Bodnertiat have treated an order holding a defendant to answerfor a lesser felony to be a dismissal of the greater felony under section 871and a-termination of the action under section 1387. To do so would eviscerate the central purpose of section 1387, as reaffirmed in this‘Court’s recent decision in People-v. Traylor, supra, because it would allow the prosecutionunlimited refilings of greater felony charges where a magistrate held the defendant to answer on a lesser charge. (See People v. Traylor, supra, 46 Cal.4th at 1218 [“a prime objective of the statute is to. limit prosecutorial forum shopping on evidencethat prior magistrates have alreadyfound insufficient’[original italics].) The bar would operate only if the greater charge were dismissed altogether. *7While Ramos points to section 871.5 as an alternate meansto review a magistrate’s decision to hold a defendant to answerfor less than he was charged with, it did not hold that a magistrate’s order terminates the action only if it is an order reviewable under section 871.5. (Ramos, supra, 32 Cal.3d at p. 36.) . 79 third option: Having twice failed to marshal the evidence to support a murder charge, the prosecution could have proceeded on an information alleging the manslaughter charge on which the magistrate held appellant to answer.*® That was, afterall, the charge to which the prosecution accepted a guilty plea by appellant’s more culpable co-defendant. The primary purpose of section 1387, subdivision (a), is to protect defendants from the persistent refiling of charges the evidence does not support, in hopes of finding a sympathetic magistrate who will hold the defendant to answer on the greater charges. (People v. Traylor, supra, 46 Cal.4th at p. 1209.) In Traylor, this Court held that refiling a lesser charge, after the magistrate has dismissed the greater charge (felony vehicular manslaughter with gross negligence vs. misdemeanor vehicular manslaughter based on ordinary negligence), was not precluded by section 1387's single dismissal rule for misdemeanors, because the pursuit of lesser charges wasconsistent with the statute’s purpose to discourage overcharging. (/d. at p. 1215.) The remedy contemplated in Traylor wasreadily available to the prosecution, but it chose not to pursueit, resulting-in the third termination of the action when the murder charge-was dismissed in superior-court, following the prosecution’s refiling under section 739. That dismissal precluded a fourth filing, which was not authorized even if section 1387.1 applied retroactively to appellant. 8s this Court has emphasized, the state’s right to appeal is statutory and narrowly construed, and “[c]ourts must respect the limits on review imposed by the Legislature ‘although the People may thereby suffer a wrong without a remedy.’” (People v. Williams, supra, 35 Cal.4th at p. 823, citing People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 499.) 80 2. The State Did not Prove Excusable Neglect Evenifthis Court finds section 1387.1 applicable to this case, and ___.._.____._findstherewereonlypresent-sti]... must find that the trial court erred in finding excusable neglect that allowed a third refiling of the Apodaca murdercharge. Section 1387.1 provides that excusable neglect “includes, butis not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses.” (Pen. Code, § 1387.1, subd. (b).) The term “excusable neglect” in section 1387.1 has the same meaningasin civil cases: “Simply expressed,‘[e]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’” (People v. Mason (2006) 140 Cal.App.4th 1190, 1196, quoting Miller v. Superior Court (2002) 101 Cal.App.4th 728, 741 (Miller); accord People v. Massey (2000) 79 Cal.App.4th 204, 211.) Itis the prosecution’s burden to prove that at least one ofthe prior dismissals was dueto excusable neglect. (Miller, supra, 101 Cal.App.4that p. 747.) If the errors amountto “inexcusable neglect” — that is, if they are not objectively reasonable, then a third refiling will not be permitted. (People v. Woods (1993) 12 Cal.App.4th 1139; 1149.) Similarly, if the dismissal is not due to neglect but to the deliberate tactical decisions of the prosecution, a third refiling will not be permitted. In this case, the prosecution’s evidence of excusable neglect related- primarily to its inability to produce DeAlvaat appellant’s April 1987 preliminary hearing. Specifically, the prosecution argued that the excusable neglect consisted ofits failure to properly serve DeAlva, and/or the magistrate’s refusal to grant a continuance so the prosecution could attempt 81 to locate him.”? (4 RT 904.) While otherwise refusing to elaborate on his reasoning, the trial judge cited the magistrate’s denial of a continuance as groundsfor finding excusable neglect. (4 RT 912-913.) This was wrongonat least two scores. First, the prosecution argued, and thetrial judge agreed (erroneously), that the magistrate’s order holding appellantto answerfor the lesser offense ofmanslaughter did not constitute a dismissal, or “termination of the action,” within the meaning of section 1387. (4RT 907.) Thus, the magistrate’s denial of the continuanceis not relevant to the issue of excusable neglect because—on the prosecution’s own theory— there was no dismissal to excuse. Second,the notion that a one- or two-day continuance would have allowed the prosecution to secure DeAlva’s attendance (4 RT 912-913), is contradicted by the prosecution’s own evidencethatit still had not located or served DeAlva two months after the April preliminary hearing, when the superior court dismissed the case against appellant undersection 1382,or even six months later, when the prosecution accepted a plea from 2°While Deputy District Attorney Markus attempted to argue that the discussion of serving DeAlvarelated to thefirst case number, which was dismissed in March 1987 (4 RT 905), defense counsel correctly pointed out that the record contradicts this assertion: the transcript of the preliminary hearing very clearly refers to the unsuccessful attempts to serve DeAlva with a subpoenafor the April 1987 preliminary hearing. (4 RT 905-906; 2 CT 363-368.) The prosecution offered no evidence whatsoever to support a finding of excusable neglect with respect to the first dismissal in March 1987. (4 RT 893.) Thereis a brief reference, by defense counsel, in the preliminary hearing transcript to the prior dismissal being dueto a failure of witnesses to appear (2 CT 364), but the prosecution did not present any evidence about the circumstances ofthe first dismissal — its timing, the reasons, or the prosecution’s previous efforts to secure the attendance of witnesses. 82 appellant’s co-defendant, Salazar, explaining in its disposition report that “Witness DeAlva disappeared after the investigation and therefore was . a_never available witness.” (Court’sEx.[Disposition —______. Plea by then-Deputy District Attorney Harris (Dec. 29, 1987)].) Courts have found excusable neglect where witnesses havefailed to appear due to miscommunications between the prosecution and the witness. (See People v. Mason, supra, 140 Cal.App.4th at pp. 1196-1197 [previously cooperative prosecution witness left town to work on a film without notifying the prosecution, apparently not understandingthat the trial was imminent; case had been delayed repeatedly by defense continuances]; People v. Massey, supra, 79 Cal.App.4th at pp. 211-212 [finding excusable neglect, either in first dismissal wherestate’s witnesses failed to appear despite extensive efforts to secure their attendance or in second dismissal where miscommunication between investigator and prosecutor resulted in a dismissal-when the witnesses were actually available].) Excusable neglect has aiso been found wheretheprosecution made “reasonable”efforts to locate and-secure the attendance of a “recalcitrant witness” whofailed to appear even after being subpoenaed. (Miller, supra, 101 Cal.App.4th atpp. 741.)°° While the-failure to secure DeAlva’s presence for the preliminary hearing may have constituted-excusable neglect under these cases, that does not matterif, as the prosecution maintained, the magistrate ’s holding order was not a dismissal. The evidence about the prosecution’s unsuccessful *°Alternatively, the court foundthat the prosecutor’s “failureto file a technically correct affidavit in support of her motion to continue” independently constituted excusable neglect and justified a third filing. (Miller, supra, 101 Cal.App.4th at p. 742.) 83 attempts to secure DeAlva’s attendanceat the preliminary hearingis relevant only insofar asit relates to the final superior court dismissal of the case in June 1987. Deputy District Attorney Markus argued that it was excusable neglect for the prosecution to refile against appellant before it subpoenaed witnesses at Salazar’s preliminary hearing in June 1987. (4 RT 874) Bythis time, however, the decision to persist in overcharging appellant could no longer be regarded as excusable neglect. After the magistrate held appellant to answeronly for the lesser offense of manslaughter, the state was doubly on notice that it would not be ~ able to prove murder beyond a reasonable doubt without DeAlva’s testimony. The original prosecutor acknowledged at the preliminary hearing before Magistrate Lamb that whether the prosecution could establish the elements of the offense without DeAlva “will be very, very close.”?! (2 CT 365.) The magistrate’s ruling, holdingappeliant to answer only for the lesser-offense of-manslaughter, was therefore not a surprise. Nevertheless, even thougtrit had still not located DeAlva, the prosecution made a tactical decision to refile the murder charges against appellant, rather than pursuing the manslaughter charge for which he had been held to answer. Six monthslater,the prosecution accepted Salazar’s plea to precisely that offense. 3'Deputy District Attorney Harris similarly conceded in her disposition memorandum regarding the dismissal of appellant’s case in June 1987 that, without DeAlva, the prosecution “cannot establish the crime beyond a reasonable doubt.” (Court Ex. 5) «84 E. Conclusion Appellant’s second degree murder conviction must be vacated _________statetopreviously-barred=. murder charge by retroactive application of section 1387.1, in violation of the ex post facto clauses of the state and federal Constitutions. (U.S. Const., art. 1, § 10, 8" & 14 Amends.; Cal. Const., art 1, § 9.) The multiple-murder special circumstance, based uponthe invalid second degree murder conviction, must also be vacated. (U.S. Const., 8" & 14" Amends.) Because,as set forth in ArgumentI, supra, the other special circumstance in this case wasalso invalid, appellant is not eligible for the death penalty and his death sentence must be reversed and appellant resentencedtolife. Evenif section 1387.1 may be appliedretroactively, the Apodaca murder conviction muststill be vacated, because the charges had been dismissed three times, barring refiling even under section 1387.1. Further, even if refiling were otherwise proper, the state failed to prove excusable neglect as required by the statute to justify refilimg. Because appellant had a constitutionally-protected liberty interest in the correct application ofstate laws governing the dismissal and subsequentrefiling of charges, the improperrefiling of the Apodaca murder charge deprived him ofthe process due to him understate Jaw,in violation of his federal due process rights. (U.S. Const., 5" and 14" Amends.; Hicks v. Oklahoma (1980).447 US. 343, 346-347.) // // // 85 TI. THE TRIAL COURT IMPROPERLY REVOKED APPELLANT’S PRO PER STATUSIN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS This case must be reversed for a newtrial because the court below erroneously terminated appellant’s pro per status in violation of the Sixth and Fourteenth Amendments. (U.S. Const., 6" and 14" Amends.) A. Proceedings Below Appellant requested and was granted leave to proceed in propria persona (pro per) in municipal court and represented himselfat his preliminary hearing in September 1998. (1 Municipal Court RT 11-13; 1 CT 9-37.) In October 1998, in superiorcourt, at the insistence ofthe prosecutor, appellant filed a new request to continue to proceedpro per. (1 RT 1-5; 1 CT 47-51 [Petition to Proceed in Propria Persona, filed Oct. 16, 1998]. ) One of the provisions appellant was required to-initial stated-“I understand that-misconduct occurring outside of court mayresult-in restriction or termination ofPro Per privileges or my Pro Perstatus.” (1 CT 49.) | The-prosecutor stressed, because this wasa special circumstances. case in which the state was seeking the death penalty, “we wanttotake a lot of time to make sure Mr. Trujeque understandsall of this,” including his right to advisory counsel. (1 RT 7-8.) Appellant noted he had represented himself in three prior cases and been acquitted in one ofthem but agreed“it would be a goodidea to have advisory counsel.” (1 RT 9-10.) The court reviewed appellant’s petition to proceed pro per and cautioned him about the dangers of representing himself, stressing the gravity ofthe case. The court agreed to continue 86 appellant’s pro per status, and appellant was arraigned. (1 RT 11-12, 17) Appellant continued to represent himself until his pro per privileges pocket parts and a copy of the Daily Journal from the law library in hiscell. (1 CT 71-102.) Thereafter, on November 25, 1998, appellant signed a substitution of counsel form stating that he substituted his then-standby counsel, Andrew Stein, for himself. (1 CT 70 [Substitution of Attorney, filed Nov. 30, 1998].) In court on December3, 1998, Mr. Stein announced,after conferring “sotto voce” with appellant, “I’ve talked with Mr. Trujeque. Heis willing to give up his pro perstatus.” (1 RT 51-52.) Appellant, however, interjected he was doing so “involuntarily.” (1 RT 52.) Appellant explained to the trial court that he had signed the substitution of counsel form only because “I’ve-been toldby numerouspeople that today my pro per status was going to be revoked regardless of what transpires today.” Appellant insisted that hestill felt capable of defending himself and argued that the revocation of his library privileges violated his rights under the Sixth Amendmentandarticle I, section 15 ofthe California Constitution to prepare his defense. He coneluded.that, under the circumstances, “there's just nothing else I can do but giveup mystatus.” (1 RT 53-54.) Deputy District Attorney Markus explained that the revocation ofhis library privileges did not mean that appellant could not continue torepresent himself. Rather, “the materials that he needs can be supplied to him by Mr. Stein,” his standby counsel. (1 RT 54-55.) Mr. Markus added, however, that “the appropriate choice to make on behalf of the defendantis to have a lawyer represent him becauseit is a death penalty case.” (1 RT 54.) The court then inquired of appellant whether he had signed the 87 substitution of attorney voluntarily, and appellant responded “yes.”(1 RT 55.) Mr. Stein argued it was in appellant’s best interests to be represented by counsel because appellant might otherwise attempt, in effect, to “plead[ ] guilty to the death penalty” in violation of section 1018. (1 RT 56.) Mr. Stein further stated that he agreed the Sheriff's Department had provided adequatejustification for terminating appellant’s access to the law library, and appellant would not be “in a very good position” to represent himself if he did not have accessto the law library. (1 RT 56.) Mr. Stein addedthat he had had a “man to man”talk with appellant and believed appellant had “intelligently, knowingly and voluntarily” given up his right to represent himself. (1 RT 56-57.) Mr. Stein urged the court to therefore accept the substitution of counsel. (1 RT 57.) The court said “I am.” (1 RT 57.) Deputy District Attorney Markus, recognizing that appellant’s own *?The full exchange wasasfollows: The Court: Let me just ask you this, Mr. Trujeque. Did you voluntarily sign this substitution of attorney? The Defendant: Yes. The Court: All right. You understand what that means? The Defendant: Yeah. The Court: That means that you are, in fact, substituting Mr. Stein in as your attorney. The Defendant: Yes. The Court: All right. Mr. Stein. (1 RT 55-56.) 88 wishes had not been addressed, asked appellant what he wanted to do, and appellant responded “I want to represent myself and . . . be allowed to have a_____accessl RT.57.)thatfor the third time during the hearing, conferred “sotto voce” with appellant. (1 RT 57.) Mr. Stein then said “T'll ask the court to -- I think the court already said they've accepted the substitution of attorney.” (1 RT 58.) Deputy District Attorney Markusinterjected that he was “not happy with the record” and urged the court to make a ruling because “we have documents submitted to this court that indicate that his pro per status should be, in fact, withdrawn.” (1 RT 58.) The court then summarized the “Notice of Results of Administrative Hearing to Revoke Defendant’s in Custody Pro per Privileges for Cause,” finding that five pocket parts and oneissue of the Daily Journal, stamped “LA County Jail,” had been found in appellant’s cell. (1 RT 58.) In addition, 750 milligrams of methocarbamol*? and a black ball point pen were foundin hiscell, in violation ofjail rules. (/bid.) The court then recitedthat appellant was not “under any duress or force to sign the substitution of attorney.” (1 RT 58-59.) The court concluded, “based on the seriousness of the charges, the fact that a-substitution of attorney was voluntarily and willingly signed, the court will acceptthe substitution of attorney.” (1 RT 59.) The minute order for the day reflects 6%that appellant’s “motion to withdraw substitution of attorney” was denied. **Methocarbamolis a prescription muscle relaxant which comes in tablets of 500 or 750 milligrams. (See Methocarbamol Images [as of March 13, 2012]; AHFS Consumer Medication Information, Methcarbamol (Oct. 1, 2010) [as of March 13, 2012].) Thus, appellant was apparently in possession of one or one and a half tablets of the medication. 89 (1 CT 103.) B. The Law Governing Self-Representation The Sixth Amendment guarantees a criminal defendant both the right to the assistance of counsel andthe right to proceed without counsel: The language andspirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel uponthe accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defenseis stripped of the personal character upon which the Amendment insists. (Faretta v. California (1975) 422 U.S. 806, 820 [footnote omitted] (Faretta).) The Supreme Court believed that self-representation would rarely be to.a defendant’s advantage. Nevertheless,“although he may conducthis own-defenseultimately to his own detriment, his choice must be honored out of ‘that respect for the individual whichis the lifeblood of the law.’” (Faretta, supra, 422 U.S.at p. 834, quoting linois v. Allen (1970) 397 U.S. 337, 350-351 (conc. opn. of Brennan, J.); see also Martinez v. Court of Appeal ofCalifornia, Fourth Appellate Dist. (2000) 528 U.S. 152, 161 [experience has taughtus that a pro se defense is usually a bad defense”].) Indeed, this Court has repeatedly held that “the autonomyinterest motivating the decision in Faretta” applies equally in capital cases, despite their complexity. (People v. Taylor (2009) 47 Cal.4th 850, 865; accord People v. Blair (2005) 36 Cal.4th 686, 738-739; People v. Koontz (2002) 27 Cal.4th 1041, 1073-1074; People v. Bradford (1997) 15 Cal.4th 1229, 90 1364-1365; People v. Bloom (1989) 48 Cal.3d 1194, 1222-1223.) And even encompassesa capital defendant’s right to “choose a strategy aimed at Hoobtainingsentenceofratherimprisonmentwithout the possibility of parole, for some individuals may rationally prefer the formerto the latter.” (People v. Taylor, supra, 47 Cal.4th at p. 865, citing People v. Bloom, supra, 48 Cal.3d at pp. 1222-1223.) Once a defendanthas exercised his right to represent himself, that right may be revoked against the defendant’s wishes only undervery limited circumstances, such as when the defendant engagesin misconduct that disrupts or underminesthe integrity of the trial proceedings. (See, e.g., People v. Butler (2009) 47 Cal.4th 814, 826 (Butler); People v. Carson (2005) 35 Cal.4th 1, 10.) Even when a defendant engages in misconduct, the trial court must explore sanctions short of terminating his self- representation. (People v. Carson, supra, 35Cal.4th at pp. 11-12.) This Court recently reiterated that restrictions on a defendant’s ability to prepare for trial — dueto his limited access-_to the law library — are: not a legitimate reason to terminate a defendant’s self-representation: “while limitations on pro.-per. privileges ‘may be necessary ... as a result of a defendant's misconductin jail,’ they ‘would not, however, preclude a defendant from making an intelligent and voluntary decision to continue to represent himself provided that hé has been warnedofthe dangers and difficulties that such a choice might entail.’” (People v. Butler, supra, 47 Cal.4th at p. 827, quoting Ferrel v. Superior Court (1978) 20 Cal.3d 888, 892.) Where a defendant’s access to the law library has been restricted, the defendant’s constitutional right to prepare his defense may besatisfied by providing him with advisory counsel, who would be able to provide the 91 defendant with legal research materials, and “reasonably necessary investigative assistance.” (People v. Butler, supra, 47 Cal.4th at p. 827; accord People v. Moore (2011) 51 Cal.4th 1104, 1126.) 3B Ak oR Thetrial court’s ruling terminating appellant’s self-representation rested onthree grounds, each of which waserroneous: (1) appellant’s loss of pro per privilegesat the jail law library; (2) that appellant signed a substitution of counsel; and (3) the seriousness of the charges. C. Appellant’s Pro Per Status Could Not Properly be | TerminatedBecause of His Loss of Library Privileges This case bears striking similarity to Butler, which wasalso a Los Angeles County case, tried a few years before appellant’s. Butler, like appellant, was representing himself when the jail terminated his pro per privileges at thejail law library.* (People v. Butler, supra, 47-Cal.4th at pp.-818-819.) Thetrial court tried to persuade the defendant to abandon self-representation, warning him: “I is pretty obvious with this type of situation that pro per status is probably going to be revoked. It makes sense to me, it makes sense to you.” (/d. at p. 820.) The prosecutor argued that the defendant was a security risk: he was ontrial for stabbing another inmate;he had been caught multiple times with razor blades, drugs, and alcohol. Finally, he was caught attempting to smuggle a 4-inch shiv to court, hidden in his rectum. (/d. at pp. 820-821) The judge told Butler: “T think for your benefit and the safety of the deputies that I will revoke the pro perstatus from you.” (Ud. at p. 821.) 4Appellant’s infractions — stealing pocket parts — pale in comparison to Butler’s, however, discussed above. 92 The trial court nevertheless granted Butler’s renewed Faretta request several monthslater, after cautioning him that he would be extremely has the absolute right to shut down any pro perprivileges that you have in jail. Understand? Based on yourrecord ofincidents, that is what will happen, I am sure.” (People v. Butler, supra, 47 Cal.4th at p. 822.) Approximately a month later, Butler’s standby counsel, who had represented him inhisearlier capital case, still had not provided Butler with all of the relevant legal materials he had promised: “Without further inquiry, the court revoked defendant's Faretta right for the second time, with this statement: ‘It is not unique to yourclient. This is the pro per problem. You havea pro perthat is in for another case; andthejailis jail, it is not a law library. They restrict what you can do there.’” (/d. at p. 823.) This Court concludedthat the trial court’s observation that “‘it just doesn't make sense’ to-allow pro. per. representation under the circumstances faced by defendant may have been reasonable, but it was inconsistent with the requirements-ofFaretta and its progeny” because “Faretta gives [defendants] the right to make a thoroughly disadvantageous decision to act as their own counsel, so long as they are fully advised and cognizantofthe risks and consequences oftheir choice.” (People v. Butler, supra, 47 Cal.4th at p. 828.) Appellant believed that the same thing that happened to Butler would happen to him:that his pro per status would be revoked because he hadlost his pro per privileges at the jail law library. This mistake was reinforced by the warning on the pro perpetition that “misconduct occurring outside of court mayresult in restriction or termination of Pro Per privileges or my Pro Per status.” (1 CT 49.) Nevertheless, when appellant madeclear he had 93 signed the substitution of counsel only because he believed his pro per status was about to be revoked,the trial court made no effort to correct appellant’s misapprehension of the law. (1 RT 55-56.) While Deputy District Attorney Markus had pointed outearlier that standby counsel could provide library materials for appellant and he could continue to represent himself (1 RT 55), the trial judge never confirmedthis or inquired whether appellant would, understanding this, elect to continue representing himself. Appellant’s own standby counsel, Mr.Stein, also failed to correct the error, arguing instead that appellant would notbe able to represent himself without access to thejail library and asserting further that appellant should not be allowed to represent himself because he would ask for the death penalty. (1 RT 56.) While Mr. Stein’s argument was doubtless well-intentioned, it — like the trial judge’s ruling in Butler — was “inconsistent with the requirements ofFaretta and its progeny,” (People v. Butler,supra 47 Cal4th at p. 828), and compounded the. confusion about appellant’s right to represent himself despite his loss-oflibrary privileges.It also put Mr. Stein at odds with hisclient. Because thetrial court never corrected appellant’s mistaken belief that his status would be revoked automatically, appellant himself was never permitted, as required by Butler, to make “anintelligent and voluntary decision” whether “to continue to represent himself” after being warned-of the drawbacks of proceeding without access to the law library. ( People v. Butler, supra, 47 Cal.4th at p. 827, quoting Ferrel v. Superior Court, supra, 20 Cal.3d at p.892.) To the contrary, the court cited appellant’s loss of library privileges as a reason for endinghis pro perstatus, thus relying on the same improperrationale as thetrial judge in Butler. (1 RT 58.) 94 D. The Substitution of Counsel, Premised on a Mistake of Law Whichthe Trial Judge Failed to Correct, Did Not Validly Waive Appellant’s Right to Represent Himself The substitution of counsel was not, moreover, a valid surrender of appellant’s Faretta rights, because it was premised on appellant’s misapprehension of the law (thatloss ofjail library privileges would necessarily result in loss of pro per status) which the court failed to correct, and appellant made clear he otherwise wanted to continue to represent himself. While some caseshave held that the right to represent oneselfmay be moreeasily waived than the right to counsel, such a waiver may be found only “if it reasonably appears to the court that defendant has abandonedhisinitial request to represent himself.” (People v. Kenner (1990) 223 Cal-App.3d 56, 61, quoting Brown v. Wainwright (5th Cir. 1982) 665 F.2d 607, 610-611; see also McKaskle v. Wiggins (1983) 465 U.S. 168, 183 [defendant couldnot complain that standby counsel intruded_. on his right to represent himselfwhen he had acquiesced in counsel’s participation].) Here, it did not “reasonably appear”that appellant had abandoned his request to represent himself. Heclearly stated he did not wantto give up his right to self-representation but thought it was inevitable that his pro per statuswould be revoked becauseofhis loss oflibrary privileges. (1 RT 52.) While appellant later answeredaffirmatively to the court’s question whether he had signedthe substitution of counsel voluntarily (1 RT 55-56), Deputy District Attorney Markus then asked appellant what he wantedto do, and appellant said he wanted to continue to represent himself and have access to the law library. (1 RT 57.) The court thereafterstill failed to clarify that 95 appellant could in fact continue to represent himself even though he had lost his pro per privileges in thejail. Thetrial court’s intervention was crucial because,at this point, appellant’s erstwhile counsel was arguing against appellant’s asserted wish to represent himself. After appellant again reasserted his desire to represent himself, in responseto the prosecutor’s question, Mr. Stein interrupted him. (1 RT 57.) After conferring “sotto voce” with appellant, Mr. Stein attempted to short-circuit any further discussion by stating “I think the court already said they’ve accepted the substitution of attorney.” (1 RT 58.) In such circumstances, where — as the prosecutor recognized here (1 RT 58) — the recordis far from clear that the defendant wishes to abandon his self-representation,it is advisable for the court to have “a ‘personal dialogue’” with the defendant “to determine whether there is a waiver.” (See People v. Kenner, supra, 223 Cal.App.3d at p. 61, quoting-Brownv. Wainwright, supra, 665 F.2d at pp. 611-612 [no dialogue required where “all circumstances indicate” defendant’sdesire to abandonself- respresentation].) The trial court did not do so. Moreover,in this case, unlike Brown v. Wainwright or People v. Kenner, supra, appellant did not silently acquiesce in his attorney’s representation.** Rather, when defensecounseltried to speak for him, 5In Brown v. Wainwright, supra, the defendant asked to proceed pro se, and the public defender representing him accordingly movedto withdraw. (Brown v. Wainwright, supra, 665 F.2d at p. 609.) Thetrial judge, who wasreluctant to grant the motion, deferred ruling and asked counsel to try to resolve the differences between him andhisclient. (/bid.) Counsellater said they had resolvedtheir differences, and the case proceededtotrial; the defendant did not renew his motion to represent himself until shortly before closing arguments on the third day oftrial, at which point the motion was denied as untimely. (/d. at p. 610.) The court 96 advising the court that appellant was “willing to give up his pro perstatus,” appellant interrupted to assert that he was not giving up his Faretta rights because he had beentold his rights would be revoked anyway. (1 RT at 52- 53.) Appellant’s wishes were sufficiently clear that the minute order for the day states that appellant’s “motion to withdraw the substitution of counsel” was denied. (1 CT 103.) Denying a motion to withdraw a substitution of counsel might have been appropriate if the motion was anotherin series of vacillations by an indecisive defendant, but that was not the case. (See, e.g., People v. Marshall (1997) 15 Cal.4th 1, 22) [“vacillation between requests for counsel and for self-representation [may] amount[ ] to equivocation or to waiveror forfeiture of the right of self-representation”].) Rather, because appellant interjected contemporaneously that the substitution of counsel was notvoluntary, its validity was in question from the outset. Norwasthis a case like People v. Stanley (2006) 39 Cal.4th 913, 933, in which the defendantfailed to grasp, even after the trial court’s repeated efforts to explain, that if he exercised his Faretta rights, he could not simply change his mind in the future and expect to-have-counsel appointedto take over his defense. Thetrial court never explainedthat appellant could continue to represent himself even withoutaccessto the law of appeals found the record supported a finding of waiver. (Id. at p. 611.) In People v. Kenner, supra, the defendant made a timely Faretta motion but was transferred to another county before his motion could be heard. (People v. Kenner, supra, 223 Cal.App.3d at pp. 58-59.) When he returned several monthslater, appointed counsel represented him, and the defendant never mentioned the Faretta motion again, until his appeal. (Jd. at pp. 59, 62.) 97 library, with the assistance of his standby counsel. E. The Trial Court’s Remaining Reasons for Revoking Appellant’s Pro Per Status Were Invalid Thefinal reason given by the trial court for substituting Mr. Stein as appellant’s attorney was the “seriousness of the charges”appellant faced. (1 RT 59.) This too was an improper ground,as this Court has repeatedly made clear, most recently in People v. Taylor, supra, 47 Cal.4th at p. 865. Nordid the fact that appellant openly evinced an intention to seek the death penalty justify the termination ofhis pro se status as suggested by Mr. Stein. This Court has rejected that argument repeatedly. (People v. T.aylor, supra, 47 Cal.4th at p. 865 [rejecting argumentthat Sixth Amendmentright to self-representation must give way to Fifth and Eighth Amendment requirements that the death penalty be imposed through fair and reliableprocedures]; People v. Blair, supra, 36 Cal.4th at pp. 736-740; People v. Bloom, supra, 48 Cal.3d at pp. 1222-1223.) F. Conclusion The improper revocationofpro per status is reversibleper se. (People v. Butler, supra, 47 Cal.4th at pp. 824-825.) Appellant’s convictions and sentences-must therefore be reversed and the case remandedfor a newtrial. // Mt // 98 Iv. THE TRIAL COURT ERRED BY ALLOWING _________APPELLANT’S N AN OVERBROAD, BLANKET ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATIONWHICH PRECLUDED APPELLANT FROM PRESENTING CRITICAL EVIDENCE IN HIS DEFENSE AND IN MITIGATION OF. THE DEATH PENALTY IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION Thetrial court improperly allowed appellant’s uncle, Charlie Trujeque, to make a blanket assertion of his Fifth Amendmentprivilege against self-incrimination at both the guilt-innocence and penalty phases of the case, without making any inquiry whatsoeverinto thevalidity of the asserted privilege or giving any weight to appellant’s countervailing constitutional rights to present a defense, to compel the presence of witnesses and to present a case in mitigation of the death penalty, in violation ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and the analogous provisionsofthe state Constitution. Thetrial court also erred by allowing Elena Trujeque to make a blanket assertion of her Fifth Amendmentprivilege at the penalty phase whenshehadalreadytestified at the guilt-innocence phaseofthe trial and therefore waivedherprivilege. A. Relevant Facts Appellant’s aunt and uncle, Charlie and Elena Trujeque, were both listed as prosecution witnesses at the guilt-innocence phaseofthetrial, to testify to appellant’s motive for the murder ofMax Facundo, who wastheir daughter Charlene’s boyfriend. It was undisputed that Facundo was 99 extremely abusive to Charlene, beating her severely enoughto give her frequent black eyes and bruises. It was also undisputed that Charlene’s parents, Charlie and Elena, were very unhappy and concerned about Facundo’s treatment of their daughter. Onedefense theory was that Charlie and Elena Trujeque enlisted appellant’s help to “take care of Max Facundo. (5 RT 1011.) Before Charlie and Elena Trujeque were called to testify for the prosecution, the Deputy District Attorney informed the court the Trujeques might need lawyers because “there may be Fifth Amendmentissues.” (5 RT 1094.) Both lawyers, Hattie Harris and Anthony Garcia, were in court the next morning, and the prosecutor announced he had supplied them with copies of Charlene, Charlie and Elena’s police interviews. (5 RT 1098; 4 CT 957.) The court reiterated for the record that it was appointing counsel to advise Elena Trujeque ofher rights. (5 RT 1103:) Ms. Harris, Elena Frujeque’s lawyer, reported to the prosecutor, after conferring with her client, that she did not see how Mrs. Trujeque could hurt herself by testifying and advised her-to take the stand. (5 RT 1104.)- 1. Elena Trujeque’sTestimony The prosecutor subsequently called Elena Trujeque as a witness and elicited fromher that appellant and Charlene wrote to each other and Charlene accepted collect calls from him. (5 RT 1252-1253.) Elena was concerned Charlene and Tommyweretoo friendly and that his letters were “not cousinly.” (6 RT 1288.) Charlene herself did not think that appellant’s letters were inappropriate. (5 RT 1055.) Elena Trujeque agreed that — as the prosecutor putit — Charlene was “having problems” with Facundo in 1986. (5 RT 1253.) In fact, Facundo “was constantly beating her up.” (/bid.) Charlene’s face and arms were 100 often “all bruised” from Facundo’s beatings, and her eyes blackened between 15 and 20 times that Elena could remember. (5 RT 1254, 1296.) nothing unless Charlene pressed charges herself. (5 RT 1254.) Whenappellant was released from prison in 1986, he came to Charlie and Elena’s house, and Tommy and Charlene stayed upall night talking. (S RT 1255, 1257.) The next time Elena Trujeque saw appellant was a few weekslater, on the day Facundo waskilled. (5 RT 1256, 1258.) Appellant came over with his cousin Raymond. Appellant, Raymond and Charlie spoke outside for about five minutes, after which Charlie seemed nervous. (5 RT 1258-1261.) Appellant and Raymondthenleft with Charlene and Facundo. (5 RT 1261.) That evening, Charlie’s cousin Pat phoned, and Charlie and Elena learned Facundo had been stabbed in front of Pat’s house. (5 RT 1262-1265.) Later, appellant called and Elena and Charlie-picked him up and gave him a ride to El Sereno. Elenasaid that, during the drive, Charlie berated appellant for killing Facundo, because Charlie and Elena wereafraid ofretaliation from Facundo’s family. (5 RT 1266-1268.) On direct examination, Elena Trujeque denied that she or her husband-had ever asked appellant to hurt Facundoto stop him from beating Charlene. (5 RT 1268.) She also deniedthat they ever acted pleased that Facundo was dead or promised to send appellant moneyfor killing him. (5 RT 1270.) On cross-examination, Elena Trujeque acknowledged that Charlie plannedto ask appellant to beat up Facundo,and that she and her husband had agreed to ask appellant to hurt Facundo but “not to do anything violent.” (6 RT 1309.) On redirect, Elena denied that she told appellant to 101 hurt Facundo, though she was present when her husbanddid so;she also heard Charlie say to appellant one to two weeks before Facundo waskilled “no, no, no, don't dothat, just -- just hurt him.” (6 RT 1339-1340.) Elena said her husbanddid specifically say that appellant should break Facundo’s arms andlegs to teach him a lesson, and she “was on boardfor that.” (6 RT _ 1345-1346.) After Elena Trujeque admitted on cross-examination that she and her husband had asked appellant to hurt Max Facundo, the prosecutor suggested repeatedly, during both questioning and argument, that appellant had falsely implicated his aunt anduncle in Facundo’s murder and was unfairly trying to shift blame to them. (6 RT 1343-1344, 1495-96, 1498, 7 RT 1630, 1793, 1803.) 2. Invocation of the Privilege After Elena Trujeque’s testimony, Charlie Trujeque’s counsel informed both the defense andthe prosecution that he had advised Charlie Trujeque to-assert his Fifth Amendmentrights. (6 RT 1353.) The prosecution calledMr. Trujeque as a witness, and he confirmedhis intention to invoke his Fifth Amendmentrights “as to any inquiries withr regards to this matter”— either “before, during, or after the alleged homicide.” (6 RT 1355.) The prosecutor noted-that._the defense intended to call Mr. Trujeque as a witness at the penalty phase, and contended that Mr. Trujeque should be precluded from testifying in that context as well because he had invokedthe Fifth Amendment, and “I wouldbe asking him’ questions about the circumstances ofthe crime.”** (6 RT 1356.) *°Thus, despite condemning appellant for implicating his aunt and uncle in the murder, the prosecutor threatened to cross-examine them on the sametopicif theytestified as mitigation witnesses for the defense. 102 Defense counsel clarified that he intended at the penalty phase to ask Mr. Trujeque only questions pertaining to family history, and especially aboutappellant’sbecause Mr. Trujeque-was“oneonlyliving ——-—__--— —-—- people” whocould testify about appellant’s father. The prosecution, he noted, could not cross-examine beyond the scopeofdirect. (6 RT 1357.) 3. Guilt-Innocence Phase . The court instructed defense counsel to limit his argumentsto the guilt-innocence phaseofthe trial. (6 RT 1357.) Defense counsel argued that Mr. Trujeque should not be permitted to make a blanketassertion of his Fifth Amendmentprivilege as to the guilt-innocence phaseeither, and | explained that he wouldlike to ask Mr. Trujeque aboutthe contents of appellant’s letters to Charlene and aboutthe death of his niece Vicki.*’ (6 RT 1358-59.) The judge interjected, however, that he had already ruled Vicki’s death a collateral matter and would not allow questioningaboutit, though defense counsel could ask about Charlene andherrelationship with Facundo. (6 RT 1359.) When defense counsel indicated-he would alsolike to question Mr. Trujeque about Charlene’s druguse, the prosecutor objected that defense counsel could not “pick just one spot and not allow the -opposing party the ability to cross examine.” (6 RT 1360-1362.) The court then reverseditself and ruled that Mr. Trujeque’s invocation of the Fifth Amendment would precludeall questioning in the guilt-innocence phase. (6 RT 1362:)-The court reservedruling on whether Mr. Trujeque’s invocation would also precludehis testifying as a defense witnessat the *7As discussed further in Argument VII, infra, defense counsel soughtto elicit that Vicki had been stabbed to death by her abusive boyfriend andthat this had heightened the Trujeques’ fears for Charlene’s safety. (6 RT 1329-1333.) 103 penalty phase. (6 RT 1363.) 4. Penalty Phase When defense counsel attempted to call Charlie Trujeque as a witness at the penalty phase to testify about appellant’s father, the prosecutor again objected that Mr. Trujeque might incriminate himself. (10 RT 2567.) Through counsel, Charlie Trujeque then did invoke the Fifth Amendmentand refusedto answer any questions, including about family history: Q: ByMr. Stein: do you have brothers and sisters? A: Yes. | Q: How manybrothers and how manysisters do you have? Mr. Garcia: your honor, at this time I'm going to renew my objection and ask myclient not to answer on the basis of whatI've indicated and renew my objection and incorporate my argument. (10 RT 2571.) Thetrial judge refused to order Mr. Trujeque to answer the question, ruling it would be-potentially incriminating for him-to do so. (10 RT 2572.) The judge reasoned that while “the question-by itself perhaps can't incriminate him, but-following that question there will be other questions whichultimately. will lead to what the prosecution's contentionis, namely, that because of familiar relationships, your client did what he did at the behest of this witness and his wife.” (10 RT 2573.) Defense counsel objected that the information he intended to elicit could not possibly incriminate Mr. Trujeque and that sustaining the _ overbroadassertion of the privilege was crippling the defense’s ability to present a case in mitigation and underminingthereliability of the sentencing process. (10 RT 2572.) Defense counsel also accused the prosecution of acting in bad faith, encouraging Mr. Trujeque to take the 104 Fifth Amendmentin order to thwart the presentation of mitigating evidence. (10 RT 2572.) impugned and accused defense counsel of “exposing [the Trujeques] to additional charges for the sake oftheir client and hiding behindthe great issue of injustice and the death penalty. And we haveotherissues to deal with here, and that is individual rights of witnesses.” (10 RT 2574.) The prosecutor never respondedto the judge’s suggestion that the prosecution could offer Mr. Trujeque immunity, which would have protected both Mr. Trujeque’s and appellant’s rights. (10 RT 2572.) Defense counsel subsequently attempted to ask Mr. Trujeque when his parents were born; whetherhis father and grandfather had been murdered; and whether he had had a brother named Manuel whodied in 1968. In each instance, Mr. Trujeque asserted his privilege against self- incrimination. (10 RT 2575.) Defense counsel then_attempted to-ask whether Mr. Trujeque had been offered immunity from prosecution for-the Facundo murderin exchangeforasserting his Fifth Amendmentrights. (10 RT 2576-2577.) Mr. Trujeque took the Fifth Amendment,.but when ordered by the-Court to answer, denied-the prosecutor had promised him anything for refusingto testify for the defense. ([bid.) The prosecutoralso denied any promises had been madeandinsisted that since Mr. Trujeque had “taken the 5th amendment, no one can touch him. No witness can . touch him. Noprosecutor, no defense attorney. We can't use his testimony.” (10 RT 2579.) Defense counsel proffered the type of questions he would ask Mr. Trujeque: I would ask collectively, questions about his mother, his 105 father, their birth dates, their death dates, where he was raised, where his grandmother wasborn, his grandfather was born, when his grandmother died, his grandfather died, on his side, Trujeque. I'd ask him abouthis brothers,hissisters, where they wereraised, if they were in foster homes, if he had fights, did they get along well. I would ask him abouthis brother, specifically, Tommy's father, where Tommy's father was born, where he wasraised, how he was educated, where he wentto school, was hein the military, was he injured during the war, did he get hooked on heroin during the war. The offer of proof is we're informedthatthat's the truth, he got hooked on heroin, came homea heroin addict, ended up a drug addict for the rest of his life. I would ask him about Tommy's father's temper, Tommy's father's drug use, | Tommy's father beating of Tommy's mother when she was pregnant with Tommy. I would ask him if he was aware of Tommy's physical problems as a young man,hisbed-wetting. I would ask him if he knew abouthis physical disabilities, his ears, excuse me, the operations. I would ask him what Tommy waslike as a little boy, whether he's hyperactive, did-he see it, did he spend any time with Tommy. Andthisis (sic) al things that would take place, your honor, between 1953 and 1962. That would be the timeperiod that I wouldbe inquiring about and pre '53 about the family. (10 RT 2584-2585.) Mr. Trujeque confirmed he intended to take the Fifth-Amendmentas to all of these questions. (10 RT 2586.) Defense counsel stressed-again that such family history questions could not possibly have a factual nexus to the Facundo murder. (10 RT 2586.) The trial court nevertheless sustained the blanket assertion of privilege, again reasoning that “[y]ou're establishing familial relationships which could tie in with the contention that, in fact,it was this witness who requested yourclient, in essence, to commit a homicide.” (10 RT 2586.) Defense counsel, in apparent frustration, argued thatthe district attorney had shownnoinclination to prosecute Mr. 106 Trujeque and had,in fact, shaken his hand warmly when he stepped down from the witness stand, after previously invoking the Fifth Amendment, murder. (10 RT 2587.) Thetrial judge terminated the argument concerning Charlie Trujeque. (/bid.) Defense counsel then proposed, if Mr. Trujeque was unavailable,to instead call Elena Trujeque, arguing that she would be permitted totestify to hearsay statements of her unavailable husband concerning family history. (10 RT 2588.) Although Mrs. Trujeque’s lawyer, Ms. Harris, was present, it was Deputy District Attorney Markus whotook up the issue of Mrs. Trujeque’s Fifth Amendmentrights and arguedvigorously that even though Mrs. Trujeque hadtestified at the guilt-innocence phaseofthe case,shestill had Fifth Amendmentrights with respect to whether she had perjured herself in that testimony: [W]e all have an obligation to protect this witness. And we know of facts that come from the witness that we're aware of from the police report and tape recorded statements and things of that nature. But once the witnessstarts to testify and information comes out from the witness and wesay, wait a minute, we know the law. We know legaltheories of culpability. We know aiding and abetting. We-know conspiracy. And what she's saying now is what we didn't know before. There are 5th amendmentissues. Does that mean that a court is obligated to say no matter what, no matter what we know, youstill have to get up on the witness stand; you haveto incriminate yourself by questions of the defense attorney; and the prosecutionis entitled to prosecute you based upon what you say? That's not right, and that's what Mr. Stein is requesting this court to do. (10 RT 2590-2591.) 107 Ms. Harris, Mrs. Trujeque’s attorney, joined in, expressing her alarm at being informedearlier in the day, presumably by the prosecutor, that defense counsel had suggested Mrs. Trujeque had perjured herself by denying that she ever visited appellant in prison. (10 RT 2593.) “Based upon those kindsofthings,” Ms. Harris asserted, “it seems to me thatat this point in time myclient should refuse to testify on the ground that she could possibly incriminate herself for a new and different charge.” (10 RT 2594.) The court clarified that defense counsel planned to ask Mrs. Trujeque about family history and inquired if Ms. Harris would advise herclient to assert the privilege to those matters as well. (10 RT 2594-2595.) Ms. Harris ‘responded she would. (10 RT 2595.) Defense counsel explained again that he would be seeking to admit Mrs. Trujeque’s testimony only as a family historian under Evidence Code sections 1310 and 1311 and would not ask her any questionsrelating to any events after 1980. (10 RT 2595, 2597.) If neither Charlie nor Elena Trujeque would testify, he said, he would need to find someoneelse alive who knew appellant’s father and couldtestify. (10 RT 2657.) Deputy District Attorney Markussaid that although he offered a week agoto give defense counsel the numberof another paternal relative, he now objected-to any new witnessesbeing called, because the sentencing phase had already gone-on too long. (10 RT 2657-2659.) Elena Trujeque was sworn and asserted she would refuse on Fifth Amendment grounds to answer any questions, including “about your husband's father, your husband's mother, your husband's brothers and sisters, your husband's grandmother and grandfather, about the date ofbirth of those people, about the namesofthose people, and about the days they died or the dates that they died.” (10 RT 2661.) She said she would also 108 refuse to answer any questions about appellant’s childhood. (10 RT 2662.) Defense counsel asked to submit all of the questions he would ask wasinvokedproperly as to each individual question, but the prosecutor arguedit was not necessary, and the trial court agreed, stating that apart from the Facundo murder, he agreed that Mrs. Trujeque could refuse to- answerbecauseofher possible exposure to perjury charges. (10 RT 2662- 2665.) B. Applicable Law The Sixth Amendmentprovides criminal defendants the right to compulsory process to obtain testimony favorable to their defense. _ (Washington v. Texas (1967) 388 U.S. 14, 19.) And “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendmentorin the Compulsory Process or Confrontation Clausesof the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (Holmes v. South Carolina (2006) 547 U.S. 319, 324-25, citing Crane v. Kentucky (1986) 476 U.S. 683, 690 [quoting California v. Trombetta (1984) 467 U.S. 479, 485].) A capital defendant has a further right under the Eighth Amendment to present evidencein mitigation of the death penalty. (Eddingsv. Oklahoma (1982) 455 U.S. 104, 113-115; Lockett v. Ohio (1978) 438 U.S. 586, 604 (plur. opn.); Tennard v. Dretke (2004) 542 U.S. 274, 285.) Evidence concerning a capital defendant’s family and social history is indisputably constitutionally relevantmitigating evidence. (Eddingsv. Oklahoma, supra, 455 U.S.at pp. 113-115 [sentencer could notrefuse to consider capital defendant’s family history as mitigating evidence]; accord Hitchcock v. Dugger (1987) 481 U.S. 393, 398-399; see also Wiggins v. 109 Smith (2003) 539 U.S. 510, 524-525 [defense counsel’s failure to investigate and present evidenceofcapital defendant’s family and social history constituted ineffective assistance of counsel]; Williams v. Taylor (2000) 529 U.S. 362, 395-396 [same].) A defendant’s right to compulsory process must in some casesyield to a witness’ valid assertion of his or her Fifth Amendmentprivilege against self-incrimination. (United States v. Moore (9" Cir. 1982) 682 F.2d 853, 856; accord United States v. Highgate (6" Cir. 2008) 521 F.3d 590, 593 -594; United States v. Goodwin (5" Cir. 1980) 625 F.2d 693, 700 (Goodwin).) “It is well established,” however,that the privilege is properly invoked only to “protect[] againstreal dangers” of self-incrimination, “not remote and speculative possibilities.” (Zicarelli v. New Jersey State Comm’n ofInvestigation (1972) 406 U.S. 472, 478 (Zicarelli); accord Rogers v. United States (1951) 340 U.S.367, 374-375; United States v. Drollinger (9° Cir. 1996)-80 F.3d 389, 392; McCoy v. Commissioner of Internal.Revenue (9" Cir.1983) 696 F.2d 1234, 1236; United States v. Neff (9Cir. 1980) 615 F.2d 1235, 1239; see also United States v. Hoffman (1951) 341 U.S. 479, 486[witness must have“reasonablecause to apprehend danger from-a direct answer”); accord People v. Seijas (2005) 36 Cal.4th 291, 304.) Accordingly, a “witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does notofitself establish the hazard of incrimination.It is for the court to say whetherhis silence is justified.” (United States v. Hoffman, 38 Rvidence Codesections 940 and 404 codify the standard of United States v. Hoffman, supra. (People v. Seijas, supra, 36 Cal.4th at p. 305.) 110 supra, 341 U.S. at p. 486, citing Rogers v. United States, supra, 340 U.S. 367; accord People v. Seijas, supra, 36 Cal.4th at p. 304.) not others. (United States v. Goodwin, supra, 625 F.2d at p.701.) Thus, “[a] proper application”of the privilege requires that it “be raised in responseto specific questions ... a blanket refusal to answer any question is unacceptable.” (United States v. Pierce (9" Cir. 1977) 561 F.2d 735, 741; accord United States v. Highgate, supra, 521 F.3d at p. 594; United States v. Allee (1st Cir. 1989) 888 F.2d 208, 212; North River Ins. Co., Inc. v. Stefanou (4th Cir. 1987) 831 F.2d 484, 486-487; United States v. Goodwin, supra, 625 F.2d at p. 701; United States v. Malnik (Sth Cir. 1974) 489 F.2d 682, 685; General Dynamics Corp. v. Selb Mfg. Co. (8th Cir.1973) 481 F.2d 1204, 1212; Inre Marriage ofSachs (2002) 95 Cal.App.4th 1144, 1151-1152; Warford v. Madeiros (1984) 160 Cal.App.3d 1035, 1045.)- It is then the trial court’s duty to “make-a particularized inquiry, deciding in connection with eachspecific area-that the questioning party seeksto explore, whether or notthe privilege is well-founded.” (United States v. Goodwin, supra, 625 F.2d at p.701[internal quotations omitted]; accord in re Marriage ofSachs, supra, 95 Cal.App.4th-at_p. 1151; Warford v. Madeiros, supra, 160 Cal.App.3d at p. 1045.) Although a_witness may not be required to explain in detail whyhis answers would be incriminating, as that would defeat the purpose of the privilege (United States v. Hoffman supra, 341 U.S. at p. 486), thetrial ‘court must be able conduct a meaningful evaluation ofthe validity of the witness’ claim. If the questions posed appear innocuous,andit is not readily apparent why an answer would beincriminating, the witness must 111 come forward with some explanation forhis or her fears. (McCoyv. Commissioner ofInternal Revenue, supra, 696 F.2d at p. 1236; United States v. Neff, supra, 615 F.2d at p. 1240; Warford v. Madeiros, supra, 160 Cal.App.3d at pp. 1045-1046.) Ifthe court determines that the witnessis mistaken in asserting the privilege, it may order the witness to answer. (United States v. Hoffman, supra, 341 U.S.at p. 486; accord People v. Seijas, supra, 36 Cal.4th at p. 304.) | The standard of review as to whether the privilege was properly invoked is de novo. (People v. Seijas, supra, 36 Cal.4th at p. 304 [holding de novo review appropriate where witness’ invocation ofprivilege affects defendant’s constitutionalrights.]°’.) C. The Trial Court Erred in Allowing Charlie Trujeque to Makea BlanketAssertion of Privilege to Avoid Being Called as a Defense Witness In this case, the trial court abdicated completely its responsibility to conduct a particularized inquiry concerning the validity of the-witnesses’ claims of privilege. Thetrial court improperly allowed Charlie Trujeque to make a blanket invocation ofthe privilege against self-incrimination with respect to the guilt-innocence phase when there were areas of inquiry that wouldmot have incriminated him. There was absolutely no valid reason for Charlie Trujeque to invoke the Fifth Amendment with respectto the penalty phase- | | Thetrial court’s-ruling prevented the defense from presenting 39In People v. Seijas, supra, the constitutional right at stake was the defendant’s right to cross-examine a prosecution witness who invoked the privilege. (People v. Seijas, supra, 36 Cal.4th at p. 304.) In this case, appellant’s constitutional right to call witnesses in his behalf and to present a defense in mitigation of the death penalty is at stake. 112 material evidence with respect to the guilt-innocence phase andat the penalty phase effectively excludedan entire area ofcritical mitigating Eighth, and Fourteenth Amendments. 1. Guilt Phase While Charlie Trujeque wasoriginally listed as a prosecution witness, it was the prosecutor who suggested that Mr. Trujeque might want to assert his Fifth Amendmentprivilege, and the prosecutor accepted Mr. Trujeque’s invocation ofthe privilege, apparently abandoningthe intention to call him as a prosecution witness. (5 RT 1094, 6 RT 1355.) Atthat point, the court asked defense counsel what questions they would ask Charlie Trujeque at the guilt-innocence phase, and the parties essentially proceeded to address Charlie Trujeque’s claimsofprivilege as if he were a defense witness. (6 RT 1357-1360.) Defense counsel said he-would inquireabout appellant’s letters to Charlene (to rebut.the implication of Elena Trujeque that they were inappropriate); about the murder of Charlie Trujeque’s niece Vicki and howthat affected his concerns about Charlene; andwhether he was concerned-about Charlene’sdrug use. (6 RT 1358-1360.) The prosecutor objected that thedefense could not chooseisolated areas of inquiry and foreclose cross-examination on others to whichtheprivilege applies. (6 RT 1361-1362.) The judge failed to inquire, and-the prosecutor did not explain, what questions the prosecutor would have asked on cross-examination that would have incriminated Mr. Trujeque. Instead, the judge stated that he was afraid, that no matter how limited the inquiry of Mr. Trujeque, “any questions that you may ask which perhaps, in and ofthemselves, are not incriminatory but taken beforethis jury, taken in context with everything 113 that Mrs. Trujeque hassaid, can incriminate him.” (6 RT 1362.) Ignoring defense counsel’s proposal that the court allow him to question Charlie Trujeque outside the presence ofthe jury to determineifhis answersreally would be incriminating, the court accepted Charlie Trujeque’s blanket invocation ofprivilege as to the guilt-innocence phase and excused him. (6 RT 1358, 1362.) Where a criminal defendant’s right to present witnessesin his behalf is in tension with the witness’ Fifth Amendmentrights,a trial court’s failure to ensure the validity of the witness’ assertion of the privilege and to endeavor to accommodate the parties’ competing rights, is reversible error. In United States v. Goodwin, supra, the defendant sought to compel the testimony of two inmates as witnesses to establish an entrapment defense to the offense of conspiring to smuggle drugs into a prison. (United States v. Goodwin, supra, 625 F.2d at p. 700.) Both witnesses stated their intention to invoke the Fifth Amendment, and the court appointed them counsel. (/bid.) One attorney referred in a hypothetical mannerto potential liability for unspecified criminalactivities and other, secondary-criminal liability for failure to informrthe authorities of other unspecified criminal activities. [The other witness’ ] attorney stated without elaborationthat his client feared conviction “with regard to matters directly or indirectly related to this case.” (Ibid.) Thetrial judge sustained the assertionsofprivilege andforeclosed any questioning by defense counsel. (/bid.) The court of appeals found thetrial court’s inquiry “was not sufficient to allow the judge to determine accurately the nature and scope of feared incrimination.” (United States v. Goodwin, supra, 625 F.2d at p. 114 701.) The court of appeals cautioned: Even wherethe judgeis satisfied about the validity of the Fifth Amendment claim, he must give heed to the proper scope of such a claim. A finding of such a valid claim does not normally foreclose all further questions. (Ibid.) While the witness “need not reveal the details of his possible liability,” such that it would defeat the privilege, “[h]e must give a description that is at least adequate to allow thetrial judge to determine whetherthe fear of incrimination is reasonable and, if reasonable, how far the valid privilege extends.” (/d. at p.702.) Finding that each witness could have offered testimony relevant to the defense that would not have been incriminating, the court of appeals held the trial court had erred in sustaining the witnesses’ overbroadassertionsofthe privilege in violation of the defendant’s compulsory process rights. (/bid.) Inthis case, even if the defense were foreclosed from asking any. questions concerning whether Charlie Trujeque solicited Facundo’s murder, there were areas that could have been safely discussed without riskof incrimination. As the judgeinitially recognized, Charlie Trujeque’s concerns about Charlene’s relationship with Facundo would have_been an appropriate area of inquiry (6 RT 1359) and wascentral to the defense claim of imperfect defense of another. As addressed separately in Argument VI, infra, the circumstances of Vicki’s murder were,for the same reason, also highly relevant to Charlie Trujeque’s concerns about Charlene and in turn to appellant’s state of mind. Questions about appellant’s letters to Charlene also would not have been incriminating. Having ridiculed any defense suggestion that the Trujeques bore someresponsibility for Facundo’s death, the prosecutor could not 115 legitimately claim that he intendedto elicit incriminating information on that subject on cross-examination. Thus, Mr. Trujeque’s Fifth Amendment rights could have been adequately protected by limiting defense counsel’s areas of inquiry. 2. Penalty Phase Thetrial court’s grant of a blanket privilege was even more egregious at the penalty phase where defense counsel madeclear that he would not ask any questionsat all about the Facundo murder, or any events after 1980, but soughtonly to elicit information concerning appellant’s family history on his father’s side. (10 RT 2597.) The questions proffered were entirely innocuous and could not possibly have incriminated Mr. Trujeque in connection with the Facundo murder. Mr. Trujeque, however, invoked the privilege in response to questions such as how manysiblings he had and whether appellant wetthe bed as a youngster. (10 RT 2571, 2584-2585.) Thetrial judge’s reasoning that “establishing familial relationships . . . could tie in with the centention that” the Trujeques “requested your client, in essence, to commit a homicide” is contrary to defense counsel’s assurance that he would not ask any: questions at penalty about the Trujeques’ involvement in Facundo’s murder. (10 RT 2586.) Moreover,the Trujeques’ “familial relationship” with appellant was already a matter of record. The questions defense counsel sought to ask were about family history, and in particular about appellant’s long-deceased father. The court could readily have limited the scope of questioning, as defense counsel proposed, to avoid the topic of Mr. Trujeque’s more recent relationship with appellant, ensuring that Mr. Trujeque’s rights were not infringed in any way. (See United States v. Goodwin, supra, 625 F.2d at'p. 116 702.) In this case, the violation is worse than in Goodwin, supra, because the trial judge made no inquiry atall into the validity of the witnesses’ phase, the testimony the defense soughtto elicit was far more removed from the crime in which the witnesses ostensibly feared incrimination than was the case in Goodwin. (See id. at pp. 701-702; see also United Statesv. Highgate, supra, 521 F.3d at p. 594 [witness erroneously excused from testifying for defense where judge failed to “question if or why [the witness] feared prosecution or whether such a belief was reasonable,” mistakenly believing witnesses did not “have to do anything more than say they're taking [the Fifth Amendment]”]; United States v. Moore, supra, 682 F.2d at p. 857 [trial court erred by allowing co-defendant who pled guilty to make blanket assertion of privilege when “[n]Jothing in the record indicates that [he] could have claimed privilege toessentially all relevant questions”’].) Moreover,thetrial judge failed even to consider appellant’s constitutional right to present a defense in mitigation of the death penalty. To the contrary, the trial court — urged on by the prosecutor — apparently believed a witness’ assertion of privilege, however spurious, took automatic precedence over the defendant’s rights. (See 10 RT 2578, 2586.) Defining the legitimate scope ofthe privilege is essential, both-to protect the compulsory process or confrontation rights of a defendant and to prevent the privilege from being used as a subterfuge for witnesses who, for reasons quite apart from self-incrimination, simply do not wantto testify. (See United States v. Neff, supra, 615 F.2d at p. 1240 [tax protest nature of defense in prosecution for tax evasion suggested defendant’s motivation was objection to paying taxes rather than genuinefear ofself- 117 incrimination].) The Supreme Court has madeclear that, where there were significant areas of inquiry to which the witness could respond without incriminating himself, he is required to do so. In Zicarelli, supra, the Court rejected a claim of privilege by a reputed organized crime figure who was immunized and subpoenaed to appear before the New Jersey State Commission of Investigation to answer questions about organized crime and political corruption in New Jersey. Mr. Zicarelli refused to answer any of the questions put to him, despite the grant of immunity, claiminghis answers could subject him to foreign prosecution. (Zicarelli, supra, 406 USS. at p. 478.) Referring to the specific questions posed and the context in which they were asked, the Court found it not “even remotely likely that their answers could afford ‘a link in the chain of evidence’ needed to prosecute appellantin a-foreign jurisdiction.” (Zicarelli, supra, 406 U.S.at p. 479, fn. 17.) The-Court concluded: [A]ppellant was neverin real danger of being compelled to disclose information that might incriminate him under foreign law. Evenif appellant has international Cosa Nostra responsibilities, he could have answered this question truthfully without disclosing them. Should he have foundit necessary to qualify his answer by confining it to domestic responsibilities in order-to avoid incrimination under foreign law, he could have done so. To have divulged international responsibilities would have been to volunteer information not sought, and apparently not relevant to the Commission's investigation. (Id. at pp. 480-481.)- Accordingly, the New Jersey courts had properly ordered Zicarelli to testify. (Zbid.; see also North River Ins. Co., Inc. v. Stefanou, supra, 831 F.2d at p. 487 [trial court correctly ruled privilege was 118 not properly invoked wherepotential for criminal liability had been narrowedsignificantly by guilty plea and “[fJurther concerns could have the complaint”’].) The Trujeques may have had manyreasons for not wanting to testify at the penalty phase, including irritation at defense counsel and/or appellant, but they could not have had a reasonable fear of self-incrimination based on the questions defense counsel proffered at the penalty phase. D. Elena Trujeque Waived Her Fifth AmendmentPrivilege by Testifying at the Guilt-Innocence Phase of the Trial When the defense attempted to call Elena Trujeque to testify at the penalty phase, Deputy District Attorney Markusasserted that although Mrs. Trujeque hadtestified voluntarily at the guilt-innocence phaseofthetrial, incriminating “information [came] out”that “we didn't know before” and therefore she should not be-subject to further questioning by the defense. (10 RT 2591.) . The_prosecutor’s argument that a witness may invokethe Fifth Amendment, after voluntarily testifying to incriminating facts, in order to avoid providing further incriminating details is exactly wrong. The Supreme Court has held, to the contrary, that “where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details.” (Rogers v. United States, supra, 340 U.S. atp. 373.) “To uphold a-claim ofprivilege” in such circumstances “would open the wayto distortion of facts by permitting a witness to select any stopping place in the testimony.” (/d. at p. 371.) Accordingly,it is well established that once a witnesstestifies voluntarily about a subject, she may not thereafter, in the same proceeding, invokethe privilege against 119 self-incrimination when questioned further about the matter. (/d. at p. 373; accord Mitchell v. United States (1999) 526 U.S. 314, 321; People v. Williams (2008) 43 Cal.4th 584, 615.) Elena Trujeque’s lawyer also argued that she could properly refuse to testify at the penalty phase because she could be vulnerable to a charge of perjury based on hertestimony at the guilt-innocence phase, which was “very different than the tape that I heard and the reports that I read.” (10 RT 2595.) This too was mistaken:“It is axiomatic that a person who has been called to testify as a witness at a trial, and who has sworn to tell the truth, is morally and legally boundto doso.It follows, by necessary implication, that a witness whotestifies at a trial waiveshis privilege against self-incrimination as to any question whichis thereafter asked to test the credulity of his testimony.” (People v. Hathcock (1971) 17 Cal.App.3d 646, 649.) Thus, having taken the standto testify, Elena Trujeque could not invoke the Fifth Amendment simply because she was impeachedwith evidence suggesting her testimony was inaccurate. Allowing a witness to do so,as this Court has recognized, would distort the fact-finding process ofthe trial. (People v. Williams, supra, 43 Cal.4th atp. 616.)*° “Tn People v. Williams, supra, this Court held a witness was properly allowed to invokethe privilege at trial after testifying at the preliminary hearing and ratifying his testimony at a subsequent imlimine hearing. (People v. Williams, supra, 43 Cal.4th at pp. 614-618.) The court specifically emphasized, however, that the witness’ ratification ofhis prior testimony, which defense counsel claimed constituted a waiver of the privilege, occurred in a special hearing and not “at trial — a forum in which a party cannot be permitted to distort the factfinding process by allowing witnesses to give sometestimony on a topic but to assert the privilege against self-incrimination to bar related questioning.” (/d. at pp. 617-618 120 In any event, however, defense counsel specified he did not intend to question Elena Trujeque further about any of the circumstances surrounding connection with it. Counsel instead intended to inquire only about Trujeque family history and particularly about appellant’s father. E. The Trial Court’s Erroneous Ruling Allowing an OverbroadInvocation of the Privilege against Self- Incrimination was not Harmless Beyond a Reasonable Doubt whereit Prevented the Jury from Hearing Evidencein Support of Appellant’s Guilt-Innocence Phase Defense and Excluded Important Mitigating Evidence from the Jury’s Consideration Because the improperblanket assertion of privilege by defense | witnesses violated appellant’s constitutional rights to present a defense and to present evidence in mitigation of the death penalty, it is respondent’s burden_under Chapman v. California (1967) 386 U.S. 18, 24, to prove beyond a reasonable doubt that the errers did not contribute-to appellant’s convictions or sentence of death. (Crane v. Kentucky, supra, 476 U.S.at p. 691, citing Delaware v. Van Arsdall (1986) 475-U.S. 673, 684; Hitchcoek v. Dugger, supra, 481 U.S. at pp. 398-399 [absent state’s showing of harmlessness, exclusion of mitigating evidencerequires reversal of death sentence].) 1. Guilt-Innocence Phase Thetrial court’s-error in allowing Charlie Truj eque to make a blanket assertion ofprivilege at the guilt-innocence phaseofthe trial was [original italics].) Elena Trujeque’s testimony did occurattrial. Also, whereasthe witness in Williams had not had the advice of counsel before testifying at the preliminary hearing (/d. at p. 611), Elena Trujeque was advised by counsel before she elected to testify at the guilt-innocence phase. 121 not harmless beyond a reasonable doubt because the information elicited from him would have supported the defense theory of manslaughter based on unreasonable defense of another. As such, this error must be considered cumulatively with the trial court’s error in refusing to allow any evidence about the murder of appellant’s cousin Vicki by her abusive boyfriend — the major topic on which appellant had wanted to question Charlie Trujeque — and the court’s refusal to instruct on unreasonable defense of another. (See Arguments V and VII, infra.) Had defense counsel been able to question Charlie Trujeque about Vicki’s murder and howit had affected his and appellant’s concerns for Charlene’s safety, the defense would have had stronger grounds for an instruction on imperfect defense of another, and appellant could well have been convicted of manslaughterratherthanfirst degree murder. Defense counsel also sought to elicit Charlie Trujeque’s opinion that appellant’s letters to Charlene Trujeque were not inappropriate, thus rebutting the prosecution’s theory of appellant’s motive to kill-Facundo. (See 7 RT 1790.) Elena Trujeque’s credibility on this point was undercut by Charlene’s testimony that she did-notfind theetters inappropriate, and also by Detective Durazo’s testimony that Elena Trujeque had notexpressed any concern abouttheletters until the week before trial. (5 RT 1055, 6 RF 1491.) Charlie Trujeque’s testimony would have tipped the scales and undercut the only motive, other than protecting Charlene from Facundo’s violent assaults, that the prosecution offered. 2. Penalty Phase The prosecution objected to defense counsel making a detailed proffer ofall the questions he would have asked the Trujequesat the penalty phase, and the trial judge agreed it was not necessary. (10 RT 2662- 122 2665.) Counsel was able, however, to make a general proffer of the types of questions that he intended to ask the Trujeques, including about the Manuel; how appellant’s father had been raised; whether Manuel andhis siblings had been placedin foster care; information about Manuel’s military service; how he became hooked on heroin in the military and abouthis addiction; about Manuel Trujeque’s temper and his domestic violence against appellant’s mother, including while she was pregnant with appellant; and about the circumstances of his death from a drug overdosein ~1968. Counsel also wanted to ask what Mr. Trujeque had observed about appellant’s problemsas a child. (10 RT 2572, 2584-2585.) The effect of the trial court’s ruling allowing the Trujeques to make a blanket assertion ofprivilege at the penalty phase wasthus to exclude critical mitigating evidence. In particular, the-defense was able to present very little evidence about appellant’s father and none abouthisfather’s family history. The United States Supreme Court has emphasized repeatedly that the Eighth Amendmentrequires relevant mitigating evidencein capital_cases to be construed “in the most-expansive terms,” including any “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” (Tennardv. Dretke, supra, 542 U.S. at p. 284, quoting McKoy v. North Carolina (1990) 494 U.S. 433, 440; accord Smith v. Texas (2004) 543 U.S. 37, 44.) Family history evidence ofparental drug addiction and criminality, domestic violence, and abandonment, such as defense counsel sought to introduce here through the Trujeques’ testimony, has been found repeatedly to be constitutionally relevant mitigating evidence, which the defendantis 123 entitled to present and which the sentencer must consider. (See,e.g., Eddings v. Oklahoma, supra, 455 U.S.at pp. 112-114 [Eighth Amendment violated where sentencing judge refused to consider evidence of defendant’s troubled youth]; Hitchcock v. Dugger, supra, 481 U.S. at pp. 397-399 [Eighth Amendmentviolated where instruction may have prevented jury from considering nonstatutory mitigating evidence including family history of poverty and deprivation]; Williams v. Taylor, supra, 529 U.S.at pp. 395-396 [trial counsel constitutionally ineffective in failing to investigate and uncover mitigating evidence of defendant’s family history of parental alcoholism, abuse and neglect]; Wiggins v. Smith, supra, 539 U.S. at p. 525[trial counsel constitutionally ineffective in failing to investigate client’s social history.]) Indeed, in Smith v. Texas, supra, the mitigating evidence which the Texas state courts had erroneously found to be constitutionally irrelevant and insignificant included evidence similar to what appellant soughtto elicit below: that the-defendant’s “father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family membersto support a drug addiction.” (Smith+. Texas, supra, 543 U.S. at p. 41.) Becausethe jury instructions did not make clear hew the jury wasto consider and give effect to the defendant’s mitigating evidence, the Supreme Court reversed the death sentence. (/d. at pp. 47-48.) In this case, the jury was prevented even from hearing appellant’s mitigating evidence concerning his father because thetrial court failed to give any weight whatsoeverto appellant’s Eighth Amendment rights, instead sustaining a completely spurious claim ofprivilege, promoted by the prosecutor,on the part of the witness in the best position to provide the mitigating evidence. 124 Respondent cannot prove beyond a reasonable doubt that the unconstitutional exclusion of mitigating evidence dueto the trial court’s invalid. (Hitchcock v. Dugger, supra, 481 U.S. at pp. 398-399.) // // // 125 V. THE TRIAL COURT ERRED BY REFUSING TO GIVE APPELLANT’S REQUESTED INSTRUCTIONS ON IMPERFECTDEFENSE OFANOTHERORNECESSITY AS TO THE FACUNDO MURDER COUNT, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS Thetrial court improperly denied appellant’s requested instruction on imperfect defense of others in violation appellant’s right to present a defense, his right to a jury trial, and his right to a reliable penalty determination, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and the analogousprovisions of the California Constitution. (U.S. Const., 5", 6", 8" & 14" Amends.; Cal. Const. art. I §§ 15, 16.) A. Relevant Facts Asdiscussed in Argument IV, supra, it was undisputed that Max Facundo wasviolently abusive to appellant’s cousin Charlene Trujeque. Facundo beat Charlene severely on a regular basis, leaving her with black eyes andvisible bruises on multiple occasions. (5 RT 1018-1019, 1048, 1253, 6 RT 1296, 1298.) Charlene’s parents, fearing for her life, sought help from the police who said they could not intervene unless Charlene herself asked for their assistance, but Charlene would not leave Facundo or go tothe police. (5 RT 1254, 6 RT 1297, 1300.) Defense counsel argued that the jury could find that appellant had,if not a reasonable fear, then at least an unreasonable fear that his cousin was in imminent dangerof great bodily harm, given that Charlene’s parents told appellant that they were afraid Facundo wouldkill Charlene and that 126 Facundo had, on many occasions,inflicted great bodily harm on Charlene,"! beating her savagely and leaving her bloodied and bruised. Moreover, at of Facundo’s beatings, and Facundo and Charlene were both using PCP” — which, defense counsel noted, frequently triggered the beatings. (6 RT 1557-1560, 1562-1565.) Defense counsel accordingly requested the series ofjury instructions on imperfect defense of others, CALJIC Nos. 5.13%, 5.14, 5.16% and 5.17. (6 RT 1560-1561.) The defense also requested “'Abrasions,lacerations and bruising can constitute great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740, 752.) “Phenylcyclohexylpiperidineis ahallucinogenicstreet drug, originally a legal anesthetic, that induces delusions, anxiety, paranoia and violent hostility. (Brenner, Toxicity, Hallucinogens -PCP (April 14, 2009) [as of March 13, 2012].) “The defense proposedinstruction, CALJIC No.5.13, read: Homicideis justifiable and not unlawful when committed by any person in the defense of [himself] [herself] [(his] [her] ] if [he] [she] actually and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent dangerofthat crime being accomplished. A person may act upon appearances whether the dangeris real-or merely apparent. (5 CT 1210.) “The proposed instruction, CALJIC No. 5.14,read: The reasonable ground of apprehension does not require actual danger, but it does require (1) that the person about to kill another be confronted by the appearanceofa peril such as has been mentioned; (2) that the appearance ofperil arouse in [his] [her] mind an actual belief and fear of the existence of 127 that peril; (3) that a reasonable person in the samesituation, seeing and knowing the same facts, would justifiably have, and be justified in having, the same fear; and(4) that the killing be done under the influence ofthat fear alone. (5 CT 1211.) ‘5Proposed defense instruction, CALJIC No. 5.16, defined a “forcible and atrocious crime”as follows: A forcible and atrocious crime is any felony that by its nature and the mannerof its commission threatens, or is reasonably believed by the defendantto threaten, life or great bodily injury so as.to instill in [him][her] a reasonable fear of death or great bodily injury.] [Murder] [Mayhem] [Rape] [Robbery] is a forcible and atrocious crime. (5 CT 1213.) “©The proposed instruction, CALJIC No. 5.17, concerning an unreasonable belief in the need to defend another read as follows: A person, whokills another person in the actual but unreasonable belief in the necessity to defend against imminentperil-to life or great bodilyinjury, kills unlawfully, but does notharber malice aforethought-andis not guilty of murder. This would be so even thougha reasonable person in the samesituation seeing-and knowing the same facts would not have had the samebelief. Such an actual but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter. Asusedin this instruction, an “imminent”[peril] [or] [danger] means onethat is apparent, present, immediate and mustbe instantly dealt with, or must so appearat the time to the slayer. [However, this principle is not available, and malice aforethoughtis not negated, if the defendantby [his] [her] 128 instructions on mistakeoffact*’ and necessity, CALJIC Nos. 4.35% and 4.43. (6 RT 1556-1557.) The prosecutor opposedgiving anyofthe [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversary’s [use offorce], [attack] [or] [pursuit].] (5 CT 1214,) “Imperfect defenseofself or others is essentially a mistake-of-fact defense applied to the circumstances necessitating self-defense or defense of another. (See Jn re Christian S. (1994) 7 Cal.4th 768, 779, fn.3 [imperfect self-defense “is based on a defendant’s assertion that he lacked malice under Penal Code section 188 because he acted under an unreasonable mistake of fact—thatis, the need to defend himself against imminentperil of death or great bodily harm.”]) The sameistrue for imperfect defense of another. “SCALJIC No. 4.35 concerning mistake of fact provides: An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. Thus.a person is not guilty of a crimeif [he] [she] commits an -act or omits to act under an actual [and reasonable] beliefin the existence of-certain facts and circumstances which,iftrue, would make the act or omission lawful. (5 CT 12085 CT 1208.) “CALJIC No. 4.43 concerning the defense of necessity provides: A person is not guilty of a crime when[he] [she] engagesin an act, otherwise criminal, through necessity. The defendant has the burden ofproving by a preponderanceofthe evidence all of the facts necessary to establish the elements of this defense, namely: 1. The act charged as criminal was doneto prevent a significant and imminentevil, namely, [a threat of bodily 129 instructions requested by the defense, arguing that Charlene Trujeque was not in imminent danger from Facundo,so that neither the defense of necessity nor the doctrine of imperfect defense of another was applicable. (6 RT 1561-62.) Defense counsel, however, maintained that there was sufficient evidence to warrant a jury instruction. (6 RT 1559-1560, 1562- 1563.) The judge respondedthat “{t]he totality of the evidence that has been presented, including the interview with Mr. Trujeque by Detective Durazo, I | think tends to negate theseinstructions.” (6 RT 1561.) The judge insisted “if that fear [of imminent harm] waspresent, it certainly did not extend to the degree of committing a homicide” and refusedall of the requested instructions. (6 RT 1562-1565, 1713.) B. Applicable Law As noted above,-it has long been established that “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment-or in the Compulsory Process or Confrontation Clauses of the SixthAmendment,the harm to oneself or another person] [or]| iF 2. There was no reasonable legal alternative to the commission ofthe act; 3. The harm caused bythe act was notdisproportionate to the harm avoided; 4. The defendant entertained a good-faith belief that[his] [her] act was necessary to prevent the greater harm; 5. That belief was objectively reasonable underall the circumstances; and 6. The defendant did not substantially contribute to the creation of the emergency. (5 CT 1209.) 130 Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” (Holmes v. South Carolina (2006) 547 U.S. California v. Trombetta (1984) 467 U.S. 479, 485].) In Crane v. Kentucky, supra, the Supreme Court held specifically that the defendant must be permitted to present to the jury evidence concerning the circumstances in which his confession waselicited, in support of his contention that his confession was not voluntary, even though the trial court had denieda pretrial motion to suppress on the same ground, “because ‘questions of credibility, whether of a witness or of a confession, are for the jury.’” (Crane v. Kentucky, supra, 476 U.S. atpp. 687-688, quoting Jackson v. Denno (1964) 378 U.S. 368, 386, fn.13.) . Theright to present a defense is thus the right to havethe jury, not the judge, pass on the credibility-and validity of the defense. (See-Carella v. California (1989) 491 U.S. 263, 267-268 (conc. opn. of Scalia, J.) [use of mandatory presumptionsis unconstitutionalin part “because it ‘invade[s] [the] fact-finding function’ which in a criminal case thelaw assignssolely- to the jury,” quoting Sandstrom v. Montana(1979) 442.U.S. 510, 522- 523}.) The Sixth Amendmentjury trial guaranteeis a “safeguard against the corruptor overzealous prosecutor and_against the compliant, biased, or eccentric judge,”reflecting a fundamental“reluctanceto entrust plenary powersoverthe life and liberty of the citizen to one judge or to a group of judges.” (Duncan v. Louisiana (1968) 391 U.S. 145, 155-156.) The right to present a defense necessarily includesthe right to have the jury instructed on the defenserelied upon, for “the right to present a defense would be meaningless werea trial court completely free to ignore that defense when givinginstructions.” (Taylor v. Withrow (6" Cir. 2002) 131 288 F.3d 846, 851-852 [refusal to instruct on self-defense]; see also Conde v. Henry (9" Cir. 1999) 198 F.3d 734, 739 [reversal required wheretrial court’s rulings prevented defendant from arguing his theory of defense to jury, violating defendant’s rights to due process and effective assistance of counsel]; Estelle v. McGuire (1991) 502 U.S. 62, 72 [in the context ofthe record as a whole, erroneous or denied instructions may “so infect[] the entire trial that the resulting conviction violates due process,” quoting Cupp v. Naughten (1973) 414 U.S. 141, 147].) As amatter of California law as well, “‘a defendant has a constitutional right to have the jury determine every material issue presented by the evidence,”and “an erroneous failure to instruct on a lesser included offense constitutes a denial of that right.” (People v. Prince (2007) 40 Cal.4th 1179, 1264, quoting People v. Elliot (2005) 37 Cal.4th 453, 475; accord People v. Lewis (2001) 25 Cal.4th610, 645; People v. Wickersham (1982) 32 Cal.3d 307, 335 (Wickersham), disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200 (Barton); People v. Sedeno (1974) 10 Cal.3d 703, 720, overruled on other points in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 and-in People v. Breverman Barton disapproved Wickersham insofar asit treated unreasonable self-defense as a “defense” rather than as a form of the lesser included offense of voluntary manslaughter and concludedthatthe trial court was not obligatedto instruct the jury on the theory because the defense had not requested the instruction, and it was inconsistent with the accident theory on which the defenserelied at trial. (People v. Barton, supra, 12 Cal.4th at p. 200.) Barton held that a trial court had a duty to instruct sua sponte on unreasonable self-defense when supported by substantial evidence, regardless of the theory of defense. (/d. at pp. 200-201.) Because the defense in this case did rely on a theory of unreasonable defense of others and specifically requested the instruction, the defense was entitled to the instruction under either view. 132 (1998) 19 Cal.4th 142, 176 (Breverman).) “In addition, ‘a defendant has a right to an instruction that pinpoints (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on other groundsas stated in People v. Doolin (2009) 45 Cal.4th 390, 421& fn. 22; accord People v. Ward (2005) 36 Cal.4th 186, 214; People v. Mincey (1992) 2 Cal.4th 408, 437.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” (People v. Cunningham (2001) 25 Cal.4th 926, 1008 [citations omitted].) Thetrial court “should not, however, measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses,” for that task is “exclusively relegated to the jury.” (People v. Flannel, supra, 25 Cal.3d at p. 684; accord People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Marshall (1996) 13 Cal.4th 799, 847; People v. Wickersham, supra, 32 Cal.3d at p. 324.) The jury need not credit all of a witness’ testimony, including the defendant’s,°' but may chooseto believe only part of it. (See People v. Geiger (1984) 35 Cal.3d 510, 531, overruledon other grounds in People v. Birks (1998) 19 Cal.4th 108, 113; People v. Thornton (1974) 11 Cal.3d 738, 755, disapproved on other grounds in People v. Flannel, supra, 25 Cal.3d at p. 685, fn.12; People v. Ceja (1994) 26 >The defense mayalsocall into question the defendant’s out-of- court statements: “Confessions, even those that have been found to be voluntary, are not conclusive of guilt. And, as with any other part of the prosecutor’s case, a confession may be shown to be ‘insufficiently corroborated or otherwise.... unworthy of belief.’” (Crane v. Kentucky, supra, 476 U.S.at p. 689, quoting Lego v. Twomey (1972) 404 U.S. 477, 485-486.) 133 Cal.App.4th 78, 86, abrogated on other grounds in People v. Blakeley (2000) 23 Cal.4th 82 [unintentionalkilling in imperfect self-defenseis voluntary not involuntary manslaughter].) Thus, “substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself.” (People v. Breverman, supra, 19 Cal.4th at pp. 162-163; accord People v. Elize (1999) 71 Cal.App.4th 605, 615 [“a lesser included instruction is required even though the factual premise underlying the instruction is contrary to the defendant’s own testimony, so long asthere is substantial evidence in the entire record to support that premise”]; see also Mathews v. United States (1988) 485 U.S. 58, 64-65 [defendant entitled to instruction on entrapment defense even where he denied one elementof offense], citing Stevenson v. United States (1896) 162 U.S. 313, 322-323 [reversible error to refuse voluntary manslaughter instruction based on provocation though primary defense was self-defense]; United States v. Goldson (2d Cir. 1992) 954 F.2d 51, 55 [defendant entitled to mistake-of-fact instruction in prosecution for assaulting police officer though theory was inconsistent with defendant’s testimony]; United States v. Sotelo-Murillo (9th Cir. 1989) 887 F.2d 176, 182 [defendant entitled to instruction on entrapmentas “weightand credibility of the conflicting testimony are issues properly resolved by the jury”].) | The jury is also “not required to make a binary choice between the presecution evidence and the defense evidence;if the evidence as a whole would support a third scenario, the trial court may be required to give instructions on that scenario.” (People v. Hernandez (2003) 111 Cal.App.4th 582, 589-90,citing People v. Wickersham, supra, 32 Cal.3d at p. 328.) Finally, any “[dJoubts as to the sufficiency of the evidence to 134 warrant instructions should be resolved in favor of the accused.” ( Peoplev. Flannel, supra, 25 Cal.3d at p. 685, fn. 12.) oo—__—_C,___TheRefusing——————_____— — Unreasonable Defense of Others In People v. Randle (2005) 35 Cal.4th 987, 997 (Randle), overruled on other grounds in People v. Sarun Chun (2009) 45 Cal.4th 1172, 1201, this Court heldthat the trial court erred when it refused to give the defendant’s requested instructions on imperfect defense of others. As an initial matter, the court clarified that the doctrine of imperfect defense of others is recognized in California, noting that it had found previously,in People v. Michaels (2002) 28 Cal.4th 486, 529 (Michaels), that the doctrine wasnot sufficiently well established in 1990 to give rise to a sua sponte duty to instruct on it. (People v. Randle, supra, 35 Cal.4th at p. 996.) The Michaels court had recognized, however, that the doctrine of imperfect ‘defense of others “follows logically from the interplay between statutory and_decisional law” and such an instruction would be properly given if requested, as Randle had done.” (/bid., quoting People v. Michaels, supra, 28 Cal.4th at p. 530.) Asthe Randle court explained, imperfect defense ofothers,like ~The Michaels court also observed that the doctrine of imperfect defense of others “wasof ‘doubtful’ applicability, given the facts of the case”: the person Michaels claimedto be protecting — his girlfriend Christina — was incarcerated at the timeofthe killing, and the victim, Christina’s mother, from whom Michaels was purportedly protecting Christina, was asleep in her apartment when she waskilled. Thus, even if Michaels’ girlfriend was dueto be released “the next day it is doubtful that the facts would show that defendant believed, reasonably or unreasonably, that any threatened danger to Christina was ‘imminent.’ “ (People v. Randle, supra, 35 Cal.4th at pp. 995-996, quoting People v. Michaels, supra, 28 Cal.4th at pp. 530-531.). 135 imperfect self-defense, “obviates [the element of] malice because that most culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid . . . death or serious injury at the victim’s hand.”*? (People v. Randle, supra, 35 Cal.4th at p. 995.) Thus, “one who kills in imperfect defense of others-in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury-is guilty only of manslaughter.” (/d. at p. 997.) The Court rejected the so-called “alter ego”rule, holding that reasonableness was to be determined from the defendant’s standpoint, not from that of the person he wastrying to protect. (/d. at pp. 999-1000.) In Randle, the defendant andhis cousin, Byron, were pursued by the victim, Robinson and his cousin, Lambert,after stealing stereo equipment from a car belonging to Lambert. (People v. Randle, supra, 35 Cal.4th at p- 991.) Robinson and Lambert caught Byron, recovered the stolen stereo equipment,then took turns beating Byron. (/bid.) Randle, hearing Byron calling for help, dowbledback to assist him. (/d. at p. 992.) Randle said he overheard Robinsonstate his intention to kill Byron. Randle yelled at Robinson to “get offmy cousin.” (/bid.) When Robinson continued beating Byron, Randle shot him. Randle admitted continuing to shootat Byron as he ran away. ([bid.) Byron later died of his wounds. (/d. at p. Imperfect defense ofothers, like imperfect self-defense,“is not an affirmative-defense, but a description-of one type of voluntary manslaughter.” (People v. Michaels, supra, 28 Cal.4th. at p. 529.) Once the doctrine is sufficiently well-established,it “shouldbe considered a general principle for purposes ofjury instruction.” Un re Christian S., supra, 7 Cal.4th at p. 774, quoting People v. Flannel, supra, 25 Cal.3d at p. 682 [holding imperfect self-defense to be so established].) Because the instruction was requested in this case, however, the distinction does not matter. 136 993.) The court found that the error in refusing to give the requested — instruction on imperfect defense of another wasnot harmless,particularly on imperfect defense of others. (/d. at p. 1004.) In this case, as in Randle, the defense specifically requested instructions on imperfect defense of others. (6 RT1561; 5 CT 1214.) There was substantial evidence in the record to support giving theinstruction: it was undisputed that Facundo had violently abused Charlene Trujeque on numerous occasionsandthat her relatives were afraid Facundo would kill her. Thetrial judge denied the instruction on the ground that Facundo posed no imminent threat to Charlene. (6 RT 1561-1563.) In focusing on the latter point, the court stressed the portion of CALJIC No. 5.14 stating “that a reasonable person in the samesituation, seeing and knowing the samefacts, would justifiably have, and be justified in having, the same fear” and CALJIC No.5.13 stating that-the defendant must have “actually and reasonably believed”thatthe victim was about to commit “a forcible and atrocious crime” on another person, and there was imminent danger of- the crime being accomplished. (6 RT 1562, 1564 [empasis added].) The trial judge ignored that the defensehad also requested-CALJIC No.5.17, concerning imperfect defense of another, based on an“unreasonable belief in the necessity to defend against imminentperil to life or great bodily injury.” (6 RT 1561; 5 CT 1214.) The jury should have been permitted to decide whether appellant was guilty of the lesser offense of voluntary manslaughter because he unreasonably believed his cousin Charlene was in imminent danger from her abusive partner. Certainly the evidencein this case was far more 137 substantial than in Michaels, in which this Court stated in dicta that the doctrine of imperfect defense of others was of “doubtful” applicability. (People v. Michaels, supra, 28 Cal.4th at pp. 530-531.) In Michaels, the defendant’s girlfriend was incarcerated, away from her allegedly abusive mother. The mother, moreover, was asleep in bed when the defendant killed her. bid.) | In this case, besides the history of violence and the fear that Charlene’s parents had expressed, Charlene had a black eye, recently inflicted by Facundo, on the evening ofthe stabbing. (5 RT 1019, 1022.) Moreover, Charlene was with Facundoat the time, not miles away, and Facundo had just smoked a large amount of PCP, which tended to make him violent. (5 RT 1018, 1024-1026.) As defense counsel argued, these facts were sufficient to present a question for the jury, particularly as to whether_appellant could have held an unreasonable belief that Charlene was in imminentperil.’ (6 RT 1562-1563.) Thetrial court’s rationale that the requested instructionswere inappropriate because the defense theory was inconsistent with-appellant’s own statementto police and his testimony is also directly contrary to established case law. (6 RT 1561.) This Court has held that.an instruction on a lesser included offense may or even mustat timesbe given when inconsistentwith the defendant’s own testimony, because the jury may chooseto believe only part of the defendant’s testimony, or to disbelieve it 54As discussed above,the factual basis for the instructions would have been evenstrongerif the trial court had not erroneously excluded the evidence that appellant’s cousin Vicki had recently been murdered by an abusive boyfriend, heightening the Trujeques’ fears that Charlene would meet the same fate. (See Argument VII, infra.) 138 altogether. (See, e.g., People v. Breverman, supra, 19 Cal.4th at pp. 162-163 [trial court must instruct on lesser included offenses supported by ________substantialevidence againstwishes,—____ a the trial theories or tactics the defendant has actually pursued”’]; Peoplev. Barton, supra, 12 Cal.4th at pp. 201-204 [trial court properly instructed on provocation and imperfect self-defense, over defendant’s objection, although defendant testified shooting was an accident]; accord Peoplev. Elize, supra, 71 Cal.App.4th at pp. 615-616; see also Mathews v. United States, supra, 485 U.S.at pp. 64-65 [defendant entitled to instruction on entrapment defense even where he denied one element of offense]; United States v. Goldson, supra, 954 F.2d at p. 55 [defendant entitled to mistake- of-fact instruction in prosecution for assaulting police officer though theory was inconsistent with defendant’s testimony].) In this case, defense counsel urged the jury not to-credit appellant’s statements, in which he made inflammatory remarks abouthis state of mind, because appellant was actively seeking the death penalty and therefore had an incentive to exaggerate his own culpability and to undermine an otherwise plausible defense. (7 RT 1814-1812, 1819, 1821-1826, 1829.) It would therefore have beenparticularly reasonable for thejury to discount appellant’s own statements in this case. D. The Trial Court Erred in Refusing the Requested. Instructions on the Defense of Necessity The defense alternatively sought instructions on mistake of fact and the necessity defense. (6 RT 1556-1559.) The defense of necessity “was first judicially sanctioned” in California in 1974, in People v. Lovercamp (1974) 43 Cal.App.3d 823, where it was recognized as a defense to a nonviolent prison escape. (People v. Heath (1989) 207 Cal.App.3d 892, 900-901.) As the Heath court explained: Bydefinition, the necessity defense is founded upon public policy and provides a justification distinct from the elements required to prove the crime. (People v. Condley [1977] 69 Cal.App.3d [999,] 1013.) The situation presented to the defendant must be of an emergencynature, threatening physical harm, and lacking an alternative, legal courseof action. (People v. Weber (1984) 162 Cal.App.3d Supp. 1, 5.) The defense involves a determination that the harm orevil sought to be avoided by such conductis greater than that sought to be prevented by the law defining the offense charged. ( People v. Richards (1969) 269 Cal.App.2d 768, 774-775.) Necessity does not negate any element ofthe crime, but represents a public policy decision not to punish such an individual despite proof of the crime. (People v. Condley, supra, 69Cal.App.3d 999, 1009-1013; People v. Beach (1987) 194 Cal.App.3d 955, 973.) (bid.) The necessity instruction the defense requested, CALJIC No.4.43, includes the requirements that “the defendant entertained a good-faith belief that his act was necessary to prevent the greater harm” and “[t]hat belief was objectively reasonable underall the circumstances.”°° Defense counsel argued that the instruction was appropriate: [b]Jased upon whatthe uncle and aunt has told him,the fact that both the boyfriend and his cousin were high, that the family had goneto the police and wastold the police could do nothing, that the defendant had a good-faith belief that his act wasnecessary to prevent a greater harm; and that belief was In People v. Coffman (2004) 34 Cal.4th 1, this Court indicated that the defenses of necessity or duress should not apply in homicide casesto justify the killing of innocentthird parties, expressing concern that such a defense could be deployed frequently in gang killings. (Ud. at pp. 100-101, quoting People v. Anderson (2002) 28 Cal.4th 767, 777-778.) Those concerns do not apply here. Facundo wasnot innocent — rather, the gravamen of appellant’s defense was that he sought to protect Charlene from Facundo’s potentially deadly assaults. 140 objectively reasonable that the harm was going to occur. Both the uncle and aunt believed that also. The defendant did nothing to contribute to the creation of the emergency,i.e., the —_____+_____—_boyfriendbei — (6 RT 1557.) Defense counsel emphasized,“[s]pecifically when the mother said they went to the police and that the police said we're sorry, there is nothing they can do,I think that 4.43 is . . . proper in this fact pattern.” (Ibid. °° The prosecutor opposedthe instruction on the groundthat the threat to Charlene wasnot sufficiently immediate. However, as the Heath court explained, the immediacy requirement for necessity is less than for the defense of duress. Unlike duress, “[t]he necessity defense . . . contemplates a threat in the immediate future,” rather than a present threat, so that the defendant“thas the time, howeverlimited, to consider alternative courses of conduct.” (People v. Heath, supra, 207 Cal.App.3d at p. 901.) The prosecutor argued that “the court needs to make a factualcall as to whetheror not the degree of harm was imminent.” (6 RT 1559.) With respect to the immediacy of the danger Facundo posed to Charlene, the parties then vigorously disputed whether Charlenehad last been “bruised-or injured . . . two, maybe three weeks before” the incident or whether she had fresh, visible injuries from Facundoat the time of the stabbing. (6 RT 1559-1560.) This is precisely the sort of factual dispute that should have This case is distinguishable from People v. Patrick (1981) 126 Cal.App.3d 952, 961-962, in which the appellate court held “[flor any person to successfully invoke the defense of necessity, he must personally possess a reasonable beliefin the justifiability of his actions.” Appellant wasnotrelying solely on his aunt and uncle’s information but also on his own observations of Charlene’s plight. (See, e.g., 6 RT 1562-1565, 7 RT 1589-1590.) 141 been resolved by a properly instructed jury rather than by the judge. (People v. Lovercamp, supra, 43 Cal.App.3dat p. 832 [Whether any of the conditions requisite to this defense exist is a question of fact to be decided by the trier of fact after taking into consideration all the surrounding circumstances”’].) E. TheDenial of the Requested Instructions Violated Appellant’s Constitutional Rights and Was Not Harmless Beyond a Reasonable Doubt This Court held in People v. Randle, supra, 35 Cal.Ath at p. 1003, that the failure to give the requested instruction on imperfect defense of others was a state law error only and thus properly evaluated under People y. Watson (1956) 46 Cal.2d 818, 836.°’ Appellant submits, however, that refusing his requested instruction omimperfect defense of another violated his federal constitutional rights to present a defense, te have a jury decide issues offact and to determine each elementofthe charged offense, and his right to a reliable penalty determination. (U.S. Const., 5", 6", 8" & 14" Amends.) The error must-therefore be evaluated under the more demanding standard of Chapman v. California (1967) 386 U.S. 18, 24. The error was not harmless beyond a reasonable doubt. The central defense at trial was-that appellant had acted in a misguided effort to protect Charlene Trujeque from her violently abusive boyfriend. The evidence established that Facundo savagely beat Charlene on a regular basis; her parents were convinced that Facundo would kill Charlene and expressed that fear to appellant after the police refused to intercede; Charlene had a >’The court reversed under the Watson standard, however, and did not address any federal constitutional issues. (See People v. Randle, supra, 35 Cal.4th at p. 1003.) 142 black eye recently inflicted by Facundoat the time of the murder; Facundo had just smoked PCP; and he was with Charleneat the time. Absent an only to establish motive and premeditation, the jury being unawarethat appellant’s unreasonable belief that Charlene was in imminent danger from Facundo would actually negate malice. (People v. Randle, supra, 35 Cal.4th 996-997.) If properly instructed that it could consider this evidence in defendant’s favor in renderingits verdict, the jury could well have convicted appellant of the lesser offense of manslaughter or at the very least settled upon a compromiseverdict of second degree murder. Even applying the Watson standard,there is a reasonable probability that the jury would have convicted appellant of a lesser offense if they had been given a vehicle to take into account the danger that Facundo posed to Charlene Trujeque. (People v. Watson, supra, 46 Cal.2d at p. 836.) Thetrial court’s error also underminedthereliability of the death sentence in viotation of the Eighth Amendment, because the refusal to instruct.on imperfect defense of another prevented the defense from being able to develop fully and submit to the jury a defense that would have been consistent with_a penalty phase theory of mitigationbased on a mistaken belief in justification. (See-Pen. Code §190.3, factor (f); White, Effective Assistance ofCounsel in Capital Cases: The Evolving Standard ofCare (1993) 1993 U.IIL. L. Rev. 323, 357 [a capital defense attorney must develop a consistent theory to be used at the guilt and penalty phases].) H // // 143 VI. THE TRIAL COURT ALSO ERRED IN REFUSING TO INSTRUCT ON NECESSITY OR IMPERFECT DEFENSE OF ANOTHERAS TO COUNTI, THE APODACAKILLING Argument V aboveis incorporated by reference herein. After appellant had testified, defense counsel also asked that the jury be instructed on necessity, CALJIC No.4.43, and imperfect defense of others, CALJIC Nos. 5.13, 5.14, 5.15, 5.16, and 5.17, with respect to count two,the Apodaca murder, because appellant had cometothe aid ofhis friend Jesse Salazar who waslosing a fight with Apodaca. (7 RT 1713-1718.) The prosecutor disputed whether there was any threat of immediate harm within the meaning of CALJIC No. 4.43. (7 RT 1713.) The court also questioned whether there was “no reasonable alternative” to appellant’s act and whether the harmdone was disproportionate to the harm avoided, as required for the defense ofnecessity. (7 RT 1713.) With respect to the-instructions on defense of others, the judge questioned whether Apodaca was committing a “forcible and atrocious crime” that would justify appellant’s use of force. (7 RT 1717.) Defense counsel argued that Apodaca was committing “a 245” — an-assault witha — deadly weaponorforce likely to produce great bodily injury — on Salazar, justifying appellant’sintervention. (7 RT 1718.) The prosecutor maintained the evidence wasinsufficient, and appellant had not done “anything other than back up a premeditated murder” by Salazar. (7 RT 1719, 1721.) Ultimately, the court instructed the jury on voluntary manslaughter due to provocation or sudden quarrel, but not as to imperfect defense of another. (7 RT 1734; 5 CT 1150A-1156 [CALJIC Nos. 8.40, 8.42, 8.44, 8.50, 8.72, 8.73, and 8.74].) The jury returned verdict of 144 second degree murder. (7 RT 1855-1856; 4 CT 1000.) Defense counsel maintainedthat appellant, in his quest to obtain a the minor woundon the back ofApodaca’s neck in his attempt to aid Salazar.’ (7 RT 1807.) Since the jury wasfree to disbelieve parts of appellant’s testimony (People v. Breverman, supra, 19 Cal.4th at pp. 162-163; People v, Elize, supra, 71 Cal.App.4th at p. 615), it could, as defense counsel argued, have foundthat appellant had acted in unreasonable defenseofhis friend Salazar and wasthusguilty only of voluntary manslaughter — the same offense of which the more culpable Salazar had been convicted. (2 CT Supp.Two 342-348, 350.) Again,the refusal to instruct on imperfect defense of another violated appellant’s federal constitutional rights to present a defense, to *8As defense counsel emphasized, appellant’s claim that he had stabbed Apodacaseveraltimesin the left side of his body-with a screwdriver wasinconsistent with the physical evidence. (6 RT 1574, 7 RT 1605, 1625-1627; 2 CT 532.) Apodaca waskilled by a single, round, four- inch-deep puncture wound at the “jugular notch” of his upper chest. (5 RT 1179-1181.) The pathologist testified the wound resembledoneinflicted by an ice pick, but muchthicker. (5 RT 1179-1180; 1205-1206.) Apodaca had other roundto oval-shaped abrasionsto his chest and abdomenthatwere consistent with the instrument that inflicted the fatal woundstriking at an angle and possibly being blocked by clothingsothat it did not penetrate. the skin. (5 RT 1186.) One of these wounds wasthree to four inchesleft of the midline (5 RT 1242), but there were no wounds to Apodaca’s side. The- only other woundthat penetrated the skin wasa single, very shallow puncture woundat the back of the neck, surrounded by an abrasion, which had been madewith a blunter object than the weaponthatinflicted the woundand abrasions on the front ofApodaca’s body; the wounds were “very, very dissimilar.” (5 RT 1182, 1184, 1186.) The pathologist noted that the superficial woundto the back of the neck was notthe rectangular shape found in woundsinflicted by a screwdriver. (5 RT 1182.) 145 have a jury decide issues of fact and to determine each element ofthe charged offense, and his right to a reliable penalty determination. (U.S. Const., 5", 6", 8" & 14th Amends.) Reversal is required because thestate cannot establish that the error was harmless beyond a reasonable doubt on this record. (Chapman v. California, supra, 386 U.S. at p. 24.) Reversalis also required understate law:if the jury had beenproperly instructed,it is reasonably probable that it would have convicted appellant of the lesser offense of manslaughter. (People v. Watson, supra, 46 Cal.2dat p. 836.) iI | // // 146 VU. THE TRIAL COURT ERRED BY IMPROPERLY aD F NSEELICITING EVIDENCE THAT APPELLANT’S COUSIN VICKI HAD BEEN KILLED BY AN ABUSIVE BOYFRIEND WHEN SUCH EVIDENCE WAS MATERIAL TO SHOW APPELLANT’S PERCEPTION OF THE DANGER FACUNDO POSED TO CHARLENE TRUJEQUE Defense counsel attempted to elicit that another of appellant’s cousins, Vicki, had been brutally murdered by her abusive boyfriend a short time before the Facundo stabbing. The defense sought to show that Vicki’s murder made Charlie and Elena Trujeque even moreafraid that Facundo would kill their daughter and that they had discussed Vicki’s fate and their fears with appellant, thus affecting his state of mind concerning the threat that Max Facundoposedto his cousin Charlene. A. Proceedings Below On cross-examination of Elena Trujeque, defensecounsel established that Vicki was a niece of Charlie Trujeque, but when counsel attempted to ask if something traumatic had-happened to Vicki, the prosecutor objected on groundsof lack of foundation, andthetrial court- sustained the objection. (6 RT 1303.) Defense counsel then established | that Elena and Charlie Trujeque feared for their daughter’s life, that they were close to Vicki, and that Elena had first met-appellant atVicki’s house. (6 RT 1303-1304.) When defense counsel attempted to ask whether someoneelse in the family had recently been killed by her boyfriend, referring to Vicki, the prosecutor again objected, and the objection was sustained. (6 RT 1323-1324.) Defense counsel attempted again to lay a foundation, but when counsel asked if Elena Trujeque’s fears for Charlene 147 had anything to do with what happened to Vicki, the prosecutor objected that Elena Trujeque had not seen Vicki get killed. The court again sustained the objection. (6 RT 1324-1325.) Thetrial judge admonished defense counsel that she was “plowing the same ground until it’s now very fine sand... And you’ve described Mr. Facundoas the despicable, cowardly wife beater that he was, and I think that’s enough.” (6RT 1328.) Finally, over vigorous objection by the prosecutor,®’ defense counsel was permitted to proffer to the court, in a sidebar, that Vicki had been stabbed forty times by her abusive partner and that this had made Elena andCharlie Trujeque more anxious that their own daughter’s life was in imminent danger; defense counsel explained that they would show that appellant’s aunt and uncle had expressedtheir fears to him, including the impact of Vicki’s murder,and that this had affected appellant’s state of mind. (6 RT 1329-1333.) Although appearingto acknowledgethat the circumstances-of Vicki’s murder were relevant to appellant’s state of mind, the court announced, with no further explanation, “I’m excludingit under 352.”(6 RT 1333.) Similarly, when defense counsel included the circumstances of Vicki’s murder as one ofthe topics “The prosecutor accused defense counsel of being unethical for persisting in asking about Vicki’s death when his objections had been sustained. (6 RT 1329.) Counsel hadtried, however, to lay a foundation for her questions after the prosecutor objected onthat ground. Her subsequent requestfor a sidebar to discuss and argue the grounds for the prosecutor’s later objection was denied. (6 RT 1324-1325.) Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftimeor (b) create substantial danger of undueprejudice, of confusing the issues, or of misleading the jury.” 148 he wishedto raise with Charlie Trujeque, who invoked the Fifth Amendmentprivilege against self-incrimination, the court ruled that Vicki’s “under 352.” (6 RT 1359.) B. The Trial Court Violated Appellant’s Right to Present a Defense by Excluding Evidence Relevant to Establish His State of Mind The defense was thus improperly precluded,in violation of appellant’s constitutional right to present a defense, from eliciting information material to-the claim that appellant acted in imperfect defense of another. (Holmes v. South Carolina (2006) 547 U.S. 319, 324-25; Crane v. Kentucky (1986) 476 U.S. 683, 690; California v. Trombetta (1984) 467 U.S. 479, 485; accord Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56 & fn. 13 [“Our cases establish, at a minimum,that criminal defendants have the right . . to put before a jury evidence that might influence the determination of guilt”], citing Chambers v. Mississippi (1973) 410 U.S. 284, Coolv. United States (1972) 409 U.S. 100, Washington v. Texas (1967) 388US. 14, and Webb v. Texas (1972) 409 USS. 95.) Asthis Court has madeclear, “[t]he defendant’s perceptions are at issue,” in a claim of reasonable or unreasonable (imperfect) self-defense or defense of another. (People v. Minifie (1996) 13 Cal.4th 1055, 1065 (Minifie).) Thus, information that “may [have] color[ed]” the defendant’s “perceptions” of the victim is manifestly relevant. Ud. at p. 1066.) For example, evidence of threats from third parties associated with the victim “are relevant to the defendant’s state of mind-a matter ‘of consequence to the determination of the action’ [citation] -and thetrier of fact is entitled to consider those threats along with other relevant circumstances in deciding whetherthe defendant’s actions were justified.” (bid. citing Evid. Code, § 149 210 [defining relevant evidence].) “To support a claim of imperfect self-defense, evidence of third party threats may also be admissible if there is evidence the defendant actually, even ifunreasonably,associated the victim with those threats.” (/d. at p. 1069 [italics added].) Similarly, with respect to imperfect defense of another, this Court held in People v. Randle, supra, that it was the point of view ofthe defendantrather than that of the person he sought to defend that was relevant to whether the offense was murder or voluntary manslaughter. (People v. Randle, supra, 35 Cal.4th at p. 1000, citing People v. Travis (1880) 56 Cal. 251, 256.) Thus, evidence that sheds light on the defendant’s perception of the jeopardy the other person wasfacingis relevant, even if it establishes only the defendant’s unreasonable beliefthat the person he sought to protect was in imminent danger. In Minifie, this Court upheld the court of appeal’s determination that the trial court had abused its discretion in excluding under Evidence Code section 352 evidence ofthird party threatsoffered to establish the defendant’s state of mind: “Evidence bearing on [defendant’s] state of mind washighly probative, and had no ‘unique tendency’ to evoke any emotional bias againstthe prosecution. Evidence that [defendant] might have had reasonto fear for his life would not have ‘confused the issue.’ It would have further illuminated the situation the jury was required tco-evaluate.” (People v. Minifie, supra, 13 Cal.4th at p. 1071; see also People v. Davis (1965) 63 Cal.2d 648, 656 [defendantin self-defense case “wasentitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear’’].) The sameis true here. The evidence concerning Vicki’s murder in the context of an abusive relationship was highly relevant to appellant’s 150 state of mind: he as well as his aunt and uncle were close to Vicki. Her fate heightened their anxiety that Facundo would kill Charlene. The evidence required only a few questions of appellant’s aunt and uncle, and it would not have evoked emotional bias against the prosecution. (Evid. Code,§ 352.) The jury should have been permitted to consider this evidence in evaluating appellant’s state of mind. C. The Error Was Highly Prejudicial and Requires Reversal The prejudice from excludingthis probative evidence was exacerbatedby the prosecutor’s subsequent conduct. Havingsuccessfully prevented the defense from eliciting any information about Vicki’s murder, the prosecutor then used the incident forhis own purposes. On redirect examination of Elena Trujeque, Deputy District Attorney Markus brought out that Vicki had been “killed” and that Elena Trujeque did not “say to Mr. Trujeque, do the exact same thing that happened to Vicki?” (6 RT 1341.) The prosecutor then asked a series of leading questions: Q Did you think that Tommy wasthinking about Aunt Vicki when he wentoutto’stick a knife in his [Facundo’s] chest? A No.® Q Didyou talk to the defendant Trujeque aboutsticking a knife in his chest just like Aunt Vicki got when she was killed? Did you Say -- did you talk about it? °'Elena Trujeque’s personal opinion whether appellant was “thinking about Vicki” when he stabbed Facundo was completely irrelevant and speculative. (See Gherman v. Colburn (1977) 72 Cal.App.3d 544, 582 [witness’ speculation as to what another witness ‘had in mind’ is both incompetent and irrelevant”’].) 151 ~ > 0 RD O - HD - A I do recall now. When we werein the truck, he did say that he stuck him -- he stuck him with a knife. I don’t know how many times, but he -- I do recall him saying somethinglike that. Like what? Like he got the knife, and he just stuck him withit, but I don’t know how many times repeatedly that he said it. Did Mr. Trujeque makeany reference to Vicki? No. | Did hesay,I stuck him, Max Facundo, with a knife just like Vicki got stuck with a knife? No. | Did he ever bring up Vicki to you? No. You don’tknow how Vicki waskilled, meaning you weren’t there, correct? No. (6 RT 1346-1347.) It was fundamentally unfair for the trial court to prevent the defense from eliciting evidence of the impact of Vicki’s murder on the Trujeques, and their fear for Charlene’s safety, while-the prosecution used the same evidence to equate appellant with Vicki’s killer. (See Washington v. Texas, supra, 388 U.S. at pp. 22-23 [state could net constitutionally bar defendants from presenting accomplice testimony while allowing prosecution to present accomplice testimony against defendants]; see also Simmonsv. South Carolina (1994) 512 U.S. 154, 161-162 [state could not argue defendant posed a future danger while preventing defense from informing 152 jury defendant would not be eligible for parole if sentencedto life].) Appellant took the stand and, having madehis desire to be sentenced because Facundo “deserved it” for beating up Charlene. (7 RT 1591-1593, 1596.) Appellant stated that Vicki was his cousin and that she had been stabbed to death by her boyfriend, but said he did notknow if Vicki had had a relationship with her boyfriend similar to Charlene’s relationship with Facundo. (7 RT 1608-1609.) Defense counsel argued that appellant’s testimony and statements to police, after he had decided to seek the death penalty, were unreliable. (7 RT 1811-1812, 1819, 1821-1826, 1829.) In his highly inflammatory letter to the Los Angeles District Attorney, Gil Garcetti, appellant had embellished the facts of the crimes to make the offenses and his own role in them mere aggravated, claiming for example that various special circumstances applied, even when there was-no evidenceto support his claims. (See Argument Xinfra.) Evidence from other witnesses was thus particularly important to the defense in this case, because the jury couldhave chosen to disbelieve appellant’s own incriminating statements. The jury should therefore have beenpermitted to hear more fully from appellant’s aunt and uncle about Vicki’s murderand its impact on all three of them with respect to their fears for Charlene. The refusal to allow appellantto elicit this critical testimony violated his constitutional right to present a defense. (U.S. Const., 5", 6", 8" & 14% Amends.) Reversal is required because the state cannot establish that the error was harmless beyond a reasonable doubt. (Crane v. Kentucky, supra, 476 US.at p. 691, citing Delaware v. Van Arsdaill (1986) 475 U.S. 673, 153 684.) Particularly when considered together with the trial court’s related . errors in sustaining Charlie Trujeque’s blanket assertion of the privilege against self-incrimination and refusing to instruct the jury on imperfect defense of another, these rulings collectively deprived appellant ofhis central defense to the Facundo murderandthusplainly contributed to the verdict against him. Reversalis also required under state law:If the jury had been allowed to consider and give effect to this evidence and the family’s fears for Charlene’s life, in the context of a defense of imperfect defense of another, it is “reasonably probable”that appellant would have been convicted ofa lesser, noncapital offense. (People v. Watson, supra, 46 Cal.2d at p. 836.) H I I 154 VII. THE TRIAL COURT IMPROPERLY ADMITTED THE NOT PERFORM THE AUTOPSIES OF THE DECEDENTS IN THESE CASES, IN VIOLATION OF APPELLANT’S CONFRONTATION RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS At appellant’s trial, the deputy medical examiners who performed the autopsies on Apodaca and Facundodid nottestify. Instead, the prosecution called Dr. Eugene Carpenter, another pathologist with the Los Angeles County Coroner’s Office, whohad neither participated in nor observed either autopsy, to testify to the contents of the autopsy reports prepared by others. Both of the deputy medical examiners who had performed the original autopsies, Dr. Sara Reddy and Dr. Eva Heuser, had retired, but there was no evidence they were unavailable to testify.” The presentation of the contents of the autopsy reports through-the testimony of a surrogate witness-denied appellant his right to confront the witnesses against him, in violation of the Sixth and Fourteenth Amendments. A. Relevant Facts— The autopsy on Max Facundo wasperformed on June 23, 1986, by Dr. Eva Heuser who hadretired from the Los Angeles County Coroner’s office two years. before the trial. (5 RT 1164.) The autopsy of Raul “Dr. Carpenter also testified at the penalty phaseto the contents of the 1969 autopsy report on Allen Rothenberg, performedby a Dr. Herrera. (8 RT 2088-2089.) Dr. Carpentertestified that he had reviewedthe report and agreed with Dr. Herrera’s findings. (8 RT 2089.) He then described Rothenberg’s multiple stab wounds and defensive wounds on his hand. (8 RT 2089-2091.) 155 Apodaca was conducted on January 25, 1987 by Dr. Sara Reddy who had also since retired from the Coroner’s Office. (5 RT 1178-1179.) Instead of calling Dr. Heuser or Dr. Reddy, the prosecution called Dr. Eugene Carpenter, another pathologist with the Los Angeles County Coroner’s ‘Office, to testify to the contents of the autopsy reports prepared by Drs. Heuser and Reddy. (5 RT 1163-1164, 1166, 1173, 1175-1177, 1178-1179, 1181, 1184-1185, 1189.) Dr. Carpenter learned that he would be called uponto testify about the Facundo andApodaca autopsies earlier the same morning as his testimony. (5 RT 1191.) Prior to testifying, Dr. Carpenter reviewed the contents of the autopsy reports by Drs. Reddy and Heuser,the attachments to those reports, and the related photographs. (5 RT 1165- 1166, 1179.) Dr. Carpenter also reviewed Dr. Reddy’s prior testimony concerning the Apodaca murder.® (5 RT 1224.) Dr. Carpenter explained that, inLos Angeles County, autopsy reports are not dictated contemporaneously with the autopsy because the autopsy roomsare too noisy. Instead, the report is dictated; “even weekslater” based on handwritten notes made on the “Form 20" diagram during the autopsy. (5 RT 1171, 1214.) Br. Carpenter referred closely-to the autopsy reports during his testimony so he would net confuse the two cases. (5 RT 1166.) With respectto Facundo, Dr. Heuser’s report described the main Dr. Reddy testified at appellant’s 1987 preliminary hearing. (2 CT 398-409.) Thestate did not seek to introduce herprior testimony, calling Dr. Carpenterinstead to testify about the contents of Dr. Reddy’s report. Dr. Carpentersaid he did notsee errors in Dr. Reddy’s preliminary hearing testimony, but he “did see areas in which I could not agree with her based on my availability of only the autopsy report and the photographs.” (5 RT 1237.) 156 injuries as being to both lungs, the pulmonary artery, the aorta, and the liver. (5 RT 1166.) There were eight stab wounds altogether, two of them 6 2 components” — “one hole [stab wound] with severallittle nicks on it,” and “four areas of damage.” (5 RT 1173.) Three of the “thrusts,” through the same entrance wound, caused “marked damageto the lung and pulmonary artery as it comes outofthe heart,” resulting in “a lot of bleeding.” (5 RT 1172-1173.) These injuries were “lethal” and could have “cause[d] death within a minute.” (5 RT 1173.) A second stab wound wasthe “mirror image” ofthe first, with a nick “indicating that there was more than just one thrust of the knife” through the entry wound, one component going steeply upward andexiting on top ofthe collar bone and another “going in different directions down into the chest hitting the right lung and causing damage to a major vesselof the right lung.” (5 RT 1173.) Stab woundthree struck the liver “but is described as not having caused muchbleedingat all,” indicating that it must have occurred after the body had “pretty muchbled out.” (5 RT 1174.) Stab wound four went through the skin near the armpit. (5 RT 1175.) Stab wound five, near the armpit on the opposite side of the chest, “isn’tdescribed as goinginto the chest space.” (5 RT 1175.) Stab wound six went through the skin of the neck, and stabwoundsseven and eight were through the-upperleft arm. (5 RT 1175-1176.) There was no indication in the report that more than one weapon wasused. (5 RT 1175.) Dr. Carpenter agreed with Dr. Heuser’s conclusion that the cause of death was stab wounds. (5 RT 1176.) According to the autopsyreport, phencyclidine, or PCP, had been found in Facundo’s system, though Dr. Carpentertestified it was not at a lethal level. (5 RT 1177.) “Turn[ing] to the second autopsy report,” on Raul Apodaca, Dr. 157 Carpentertestified that Apodaca’s injuries consisted of one fatal, circular stab woundto the “jugular notch” on the upper chest, which was “described as having gone through the hard boneofthe breast plate” and then through the aorta. (5 RT 1178, 1179-1180, 1183.) Because it was noted in the autopsy report, Dr. Carpenter knew there wasalso a shallow, circular puncture wound on the back of Apodaca’s neck,barely visible as a “small purple dot” on the autopsy photo. (5 RT 1181-1182.) Because “this woundis described as having an abrasion aroundit. . . that means whatever made the woundwas not so sharp.” (5 RT 1182.) Comparing the two injuries, Dr. Carpenter noted “that in the report there is no abrasion to the fatal woundto the front of the chest [but] [t]here is an abrasion described to the wound to the back.” (5 RT 1184-1185.) The woundto the front was four inches deep, while the wound to the back was “minuscule.” (5 RT 1184.) There “was no description of any bleeding in thewound”to the back nor“of it hitting bone.” (5 RT 1184.) There werealso five abrasions on Apodaca’s chest and abdomen, none of which broke the skin; these injuries were “mentioned”as being 3/8 inch wide, the same width as the fatal stab wound to the chest. (5 RT 1181, 1186.) Dr. Carpenteropined that these injuries were consistent with a “nonsharp” objectstriking the chest at an angle and abrading but not penetrating the skin, possibly because ofApodaca’s clothing. (5 RT 1186.) The woundson the front of the body were “very, very dissimilar” to- the small wound on the back, so that Dr. Carpenter said he would be “surprised”if they were made by the same weapon. (5 RT 1186.)| He subsequently said, however, that he did not have enough information to agree or disagree with Dr. Reddy’s opinion, based on the two puncture wounds, that Apodaca had been stabbed with two different instruments. (5 158 RT 1233.) He agreed that Dr. Reddy was more qualified to make that determination since she had actually performed the autopsy. (5 RT 1233- hospital records. (5 RT 1235-1236.) He did agree with Dr. Reddy’s conclusion that “the cause of death is a stab woundto the chest.” (5 RT 1189.) In response to defense counsel’s question whether he had spoken to either Dr. Reddy or Dr. Heuser before testifying, Dr. Carpenter said he had not, but insisted “I never said that I told the jury what they saw and what they thought. I just read their autopsy report [sic], not their minds.” (5 RT 1195-1196.) Dr. Carpenter said he-had “looked at the photographsand I made up my own mind,”but he admitted that since he “did not do the autopsy, he “could not have seen the inside of the wounds”(5 RT 1196), which he had describedin great detailin his testimony. B. Applicable Law The Sixth Amendment's confrontation clause — a “bedrock” constitutional guarantee applicable to the states through the Fourteenth Amendment — providesthat, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford), citing Pointer v. Texas (1965) 380 U.S. 400, 406.) In Crawford, the Supreme Court held that the confrontation clause barred the admission, against the defendant, of a testimonial statement from a witness whodid not testify at trial and thus wasnot subject to cross-examination.™ (Jd. at pp. 68-69.) The statementat “The Court recognized an exception for the formertestimony of an unavailable witness whom the defendant had had an opportunity to cross- examine. (Crawford, supra, 541 U.S. at p. 68.) As noted above,although 159 issue wasa police interview of the defendant’s wife, who did nottestify because of marital privilege. Though the Court in Crawford did not “spell out a comprehensive definition of ‘testimonial,’” it identified a “core class of ‘testimonial’ statements” covered by the confrontation clause. (Crawford, supra, 541 US. at pp. 51, 68.) These include “‘ex parte in-court testimony orits functional equivalent—thatis, material such as affidavits, custodial cross-examine, or similar pretrial statements that declarants would examinations, prior testimony that the defendant was unable to reasonably expectto be used prosecutorially,’ [citation]; ‘extrajudicial statements ... contained in formalized testimonialmaterials, such as affidavits, depositions, prior testimony, or confessions,’ [citation]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available-for use at a latertrial,’ [citation].” (/d. at pp. 51-52.) Crawford overruled Ohio v. Roberts (1980) 448 U.S. 56, which allowed an out-of-court statement-to be admitted, notwithstanding the confrontation clause,if it “falls under-a firmly rooted hearsay exception” or bears “‘particularized guarantees of trustworthiness.” (Crawford, supra, 541 U.S. at pp. 60, 68-69.) The Court found that Roberts’ “malleable standard often fails to protect againstparadigmatic confrontation violations.” (Jd. at p. 60.) After examining the history of the Confrontation Clause, the Court the deputy medical examiner who performed the Apodaca autopsy had testified and been cross-examined at appellant’s 1987 preliminary hearing (2 CT 398-409), the state neither proved she was unavailable to testify nor soughtto introduceherprior testimonyat this trial. 160 concludedthatit “commands not that evidencebereliable, but that reliability be assessed in a particular manner:by testing in the crucible of Bullcoming v. New Mexico (2011) U.S. __, 131 S.Ct. 2705, 2715 (Bullcoming); Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 129 S.Ct. 2527, 2536 (Melendez-Diaz).) In Melendez-Diaz, the Supreme Court applied Crawford’s rationale to certificates issued by the state crime lab, which attested that a substance ‘found in the defendant’s car was cocaine. The Court held that the certificates were testimonial and the affiants therefore witnesses who should have been subject to cross-examination. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532; accord Bullcoming, supra, 131 S.Ct. at p. 2717 [laboratory report certifying defendant’s blood alcohollevel was testimonial, and defendant had right to confront analyst who madethecertification].) At the time-of appellant’s trial, before Crawford was decided, this Court had held that admissionof an autopsy report prepared by a pathologist who did not testify at trial did not violate a defendant’s confrontation rights because the report was admissible underthe business records exception to the hearsayrule, a firmly rooted exception “‘that carries sufficient indicia ofreliability-to_satisfy requirements of the confrontation clause.’” (People v. Beeler (1995) 9 Cal.4th 953, 979, quoting People v. Clark (1992) 3 Cal.4th 41, 158.) Because Beeler and Clark relied on the Roberts standard that was repudiated in Craw/ord, they are no longer good law. §As discussed further below, the Melendez-Diaz court held the laboratory report at issue was not admissible as a business record. (Melendez-Diaz, supra, 129 S.Ct. at p. 2538.) In Bullcoming,the trial court 161 This Court’s decision in People v. Geier (2007) 41 Cal.4th 555 (Geier), which was decided after Crawford but before Melendez-Diaz and Bullcominghas likewise been called into question. In Geier, this Court rejected a Confrontation Clause challenge to allowing a laboratory supervisorto testify regarding a DNAreport she had not authored, reasoning that testimony conveying information containedin a contemporaneously-prepared report of scientific observations and recorded as “raw data” was admissible because the report and notes were nontestimonial. (Geier, supra, 41 Cal.4th at p. 607.) This Court has pending before it severalcases concerning the implications ofMelendez-Diaz for Geier. (See, e.g., People v. Gutierrez (2009) 177 Cal.App.4th 654 [concluding that Geier remains viable], review granted Dec. 2, 2009, S176620 and People v. Rutterschmidt(2009) 176 Cal.App.4th 1047 [same], review granted Dec. 2, 2009, $176213; People v. Lopez(2009) 177 Cal.App.4th 202, 206 [concluding that Geier “appears” to have been disapproved by Melendez-Diaz], review granted Dec. 2, 2009, S177046and People v. Dungo (2009) 176 Cal.App.4th 1388 [observing that some of.Geier's rationale has been undermined by Melendez-Diaz], review granted Dec. 2, 2009, S176886.)- People v. Dungo, supra, concerns specifically whetherit violates the confrontation clause for one forensic pathologist to testify to the manner and cause of death in a murderease based upon an autopsy report prepared by another pathologist. had also erroneously admitted the laboratory report as a business record. (Bullcoming, supra, 131 S.Ct. at p. 2712.) 162 PendingonAppeal C. Defense Counsel’s Failure to Object Does Not Waive this Claim as Crawford Was an Unforeseeable Changein the Law That must Be Applied Retroactively to Cases Defense counsel did not object to Dr. Carpenter’s testimony. Thoughevidentiary challenges are usually waived unless timely raised in the trial court, this is not so whenthe pertinent law later “changed so unforeseeably that it is unreasonable to expecttrial counsel to have anticipated the change. [Citations.]” (People v. Turner (1990) 50 Cal.3d 668, 703.) Crawford effected such an unforeseeable changein the law, and the courts of appeal have accordingly appliedit retroactively to cases pending on appeal. (Peaple v. Thomas (2005) 130 Cal.App.4th 1202, 1208; People v. Song (2004) 124 Cal.App.4th 973, 982; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400; also see People v. Saffold (2005) 127 Cal.App.4th 979, 984 [no waiver of confrontation challenge to hearsay evidence of a-proof ofservice to establish service of a summonsornotice, because “[a]ny objection would have been unavailing under pre-Craw/ford law”’]; People v. Johnson (2004) 121 Cal.App-4th 1409, 1411, fn. 2 (“failure to object was excusable, since governing law at the time ofthe hearing afforded scant grounds for objection”’].) In addition, because appellant’s argumentsraise only questions of ‘law, this court may and should exerciseits discretion to address the Crawford and Melendez-Diaz issues. (See People v. Mattson (1990) 50 Cal.3d 826, 854, superseded by statute on another ground as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13; People v. Blanco (1992) 10 Cal.App.4th 1167, 1173.) 163 D. Geier Cannot Be Reconciled with Melendez-Diaz and Bullcoming Asan initial matter, this Court’s decision in Geier must be overruled as Melendez-Diaz and Bullcoming expressly reject the rationales on which the opinion wasbased. First, Geier relied heavily on the theory that a forensic analyst’s report was not testimonial because it reported contemporaneous observations, relying on the Supreme Court’s decision in Davis v. Washington (2006) 547 U.S. 813 (avis), which held that a 9-1-1 call made during a domestic disturbance wasnottestimonial. The central holding in Davis wasthat “[s]tatements-are nontestimonial” when their “primary purpose .. . is to enable police assistance to meet an ongoing emergency” and “[t]hey are testimonial” whentheir “primary purpose.. . is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington, supra, 547 U.S. at p. 822; Michigan v. Bryant (2011) U.S. __ 131-8.Ct. 1143, 1154.) In Melendez-Diaz, the Court rejected the same analogy this_Court made in Geier between a forensic report recording-near-contemporaneous observationsortest results and the 9-1-1 call in Davis. The Melendez-Diaz Court held that the more apt analogy wasto the statements made by Amy Hammon,the complaining witness in the companion case ofHammon v. Indiana. (Melendez-Diaz, supra, 129 S.Ct. at p. 2535, citing Davis v. Washington, supra, 547 U.S.at pp. 820, 830 [discussing facts of Hammor].) Whilestill made “sufficiently close in timeto the alleged Indeed, this Court held “[a]s we read Davis, the crucial pointis whether the statement represents the contemporaneousrecordation of observable events.” (Geier, supra, 41Cal.4th at p. 607.) 164 assault that the trial court admitted [them] as a ‘present sense impression,’’”Amy Hammon’s written and oral statements, made to police wereheld to be testimonial and subject to the confrontation clause. (Melendez-Diaz, supra, 129 S.Ct. at p. 2535, citing Davis v. Washington, supra, 547 U.S. at pp. 820, 830.) Hammon’s statements were testimonial becausetheir “primary purpose”wasto establish her version of events for use in a criminal prosecution. (See Davis v. Washington, supra, 547 U.S.at p. 830.) ‘Similarly, the Court concluded in Melendez-Diaz, that even if the forensic analysts were contemporaneously recording their observations and test results, the affidavits were plainly “testimonial” because their purpose was to memorialize the analyst’s findings to serve as evidence in court. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) In any event, in this case, as in Melendez-Diaz, it is “doubtful”that the reports “could be characterized as reporting ‘near-contemporaneousobservations’” because they were completed some time later. (/d. at p. 2535 [affidavits completed almost a weekafter the tests were performed]-} Dr. Carpentertestified that,_in the Los Angeles County Ceroner’s Office, while the pathologist made notes on the Form 20 diagram during the autopsy, the autopsyreports were often prepared “weeks”later. (5 RT 1214.) Second, Geier concluded that a forensic report is not-testimonial” because the witness preparing it is not accusatory, reasoning that “[r]ecords of laboratory protocols followed and the resulting raw data acquired are not accusatory,” but rather “are neutral, having the powerto exonerate as well as convict.” (Geier, supra, 41 Cal.4th at p. 607 [internal quotation omitted].) The Supreme Court rejected that argument in both 165 Melendez—Diaz and Bullcoming,finding “no support in the text of the Sixth Amendmentor in our case law”for the contention that forensic scientists are not subject to confrontation because they are “not accusatory” witnesses. (Melendez-Diaz, supra, 129 S.Ct. at p. 2533; accord Bullcoming, supra, 131 S.Ct. at p. 2717.) There is no such thing, the Court stressed,as “a third category of witnesses,” — neither accusatory nor defense witnesses — “helpful to the prosecution, but somehow immunefrom confrontation.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2534.) The Court also squarely rejected the contention that“laboratory professionals” need not be subject to cross-examination because their testimony merelyrelates the results of “neutral, scientific testing.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2536.) Noting documented problems ranging from bias to outright fraud in the forensic sciences, the Court dismissed the notion that forensic science is either inherently more “neutral or . . . reliable” than other types of evidence or “uniquely immune from the risk-of manipulation.” ([bid.; accord Bullcoming, supra, 131 S.Ct. at p. 2713.) Cross-examinationis also vital to expose an individual “analyst’s lack of propertraining or deficiency in judgment.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2537; see also Bullcoming, supra, 131 S.Ct. at p.2715 [cross-examination of surrogate does notsatisfy confrontation clause because it cannot “expose any lapsesorlies on the certifying analyst's part’’].) In any event, the Supreme Court concluded,it was “settled in Crawford” that even “the ‘obviou[s] reliab[ility]’ of a testimonial statement does not dispense with the Confrontation Clause.” (Bullcoming, supra, 131 S.Ct. at p. 2715.) The analysts who authored the-report “must be made available for confrontation even if they possess ‘the scientific acumen of 166 Mme. Curie and the veracity of Mother Teresa.’” (/bid., quoting Melendez—Diaz, supra 129 S.Ct. at p. 2537, fn. 6.) ——EK.AutopsyTestimonial Hearsay Under Melendez-Diaz and Bullcoming, the conclusionthat the contents of the autopsy reports were “testimonial” is inescapable.*’ The Confrontation Clause “is most naturally read as a referenceto the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” (Crawford, supra, 541 U.S.at p. 54; accord Giles v. California (2008) 554 U.S. 353, 358.) In Melendez-Diaz, the state argued in support of the admissibility of the laboratory certificates “that at common law the results of a coroner's inquest were admissible without an opportunity for confrontation.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2538.) But the Supreme Court rejected that argument: “as we have previously noted, whateverthe status of coroner's reports atcommon law in England, they were not accorded any special status in American practice.” (bid, citing Crawford, supra 541 °7Justice Thomas concurredseparately in Melendez-Diaz to stress that he continuedto believe that “the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” (Melendez—Diaz, supra 129 S.Ct. at p. 2543 (conc. opn. of Thomas, J.).) He subsequently joined the majority opinion in Bullcoming which held that an oath was not a prerequisite for finding the certificate in that case to be sufficiently formal and evidentiary in purpose to be deemed testimonial. (Bullcoming, supra, 131 S.Ct. at p. 2717.) Because, as discussed above, the autopsy reports at issue here were prepared in accordance with a statutory mandate, for the primary purpose of establishing facts ~ cause and mannerof death — for potential use in later criminal proceedings, they would satisfy any reasonable definition of a testimonial statement. ° 167 USS. at p. 47, fn. 2; Giles v. California, supra, 554 U.S.at pp. 399-400 (dis. opn. of Breyer, J.).) Similarly, while the majority in Melendez-Diaz acknowledged that “there are other ways — and in somecases better ways — to challenge or - verify the results of a forensic test” than through confrontation,it explicitly identified autopsy reports as an exception, observing that “[s]ome forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2536 & fn. 5.) As to these types of tests, confrontation is not just the “[cJonstitution[ally] guarantee[d]” way of verifying results, it may be the only way. (/bid.) Beeler, supra, held that autopsy reports were admissible understate evidentiary rules as businessorofficial records, and Geier agreed that business records “are not testimonial” under Crawford. (Geier, supra, 41 Cal.4th at p. 606.) The Court explained in Melendez-Diaz, however: Decuments kept in the regular course ofbusiness may ordinarily be admitted at trial despite their hearsay status. [Citation.] But+that is not the case if the regularly conducted business activity is the production of evidencefor useattrial. (Melendez-Diaz, supra, 129 S.Ct. at p. 2538.) Although-it is the “business” of the coroner (or companies working for the coroner) te conduct autopsies, the purpose for doing so in suspected homicide cases is for prosecutorial use, rather than for a company's own administrative use. The resulting reports are therefore core testimonial statements covered by the confrontation clause. As the Court stressed in Crawford, the “[i]nvolvement of governmentofficers in the production of testimony with an eye towardtrial presents unique potential for prosecutorial abuse — a fact borne out time and again throughout a history 168 with which the Framers were keenly familiar.” (Crawford, supra, 541 U.S. at p. 56, fn. 7.) Coronerswhoseconduct inquests and investigations into violent deaths are peace officers under California law. (Pen. Code, § 830.35, subd. (c).) Government Code section 27491 requires the coroner“to inquire into-and determine the circumstances, manner, and cause ofall violent, sudden, or unusual deaths; ... (Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1277.) Government Codesection 27491.4, subdivision (a), provides in pertinent part: ... The detailed medical findings resulting from an inspection of the body or autopsy by an examining physician shall be either reduced to writing or permanently preserved on recording discs or other similarrecording media, shall include all positive-and negative findings pertinent to establishingthe cause-of death in accordance with-medicolegal practice and this, along with the written opinions and conclusions ofthe examining physician, shall be includedin the coroner's record of the-death. ... Whenthere are reasonable grounds to suspect that a death “has been occasioned by the act of another by criminal means, the coroner... shall immediately notify the law enforcement agency having jurisdiction over the criminal investigation.” (Gov. Code, § 27491.1.) A forensic pathologist conducting an autopsy for the coroner in a case of suspected homicide istherefore part of law enforcement. (Dixonv. Superior Court, supra, 170 Cal.App.4th at p. 1277.) In this case, the deaths of both Facundo and Apodaca were considered homicides before the coroner undertook the autopsy. Police were called to the scene of Facundo’s stabbing (5 RT 1030, 1034, 1263- 169 1264, 6 RT 1386), Dr. Reddy conferred with police before beginning the Apodaca autopsy, and there wasa police officer present during the autopsy. (1 CT Supp. Two 60, 64.) Under these circumstances,it is reasonable to assume that Drs. Reddy and Heuser understoodthat the reports containing their findings and opinions would be used prosecutorially. ( See Melendez—Diaz, supra, 129 S.Ct. at p. 2532; see also United States v. Moore (D.C. Cir. 2011) 651 F.3d 30, 72-73 [autopsy reports were testimonial statements under Melendez-Diaz and Bullcoming because medical examiner’s office under statutory duty to conduct autopsies to aid in law enforcement and law enforcementofficers were present during autopsy]; Derr v. State (Md. Ct. App. 2011) 29 A.3d.533, 548-549 [recognizing prior decision finding autopsy reports nontestimonial could not survive Melendez-Diaz and Bullcoming and noting statutes governing preparation of autopsy reports contemplated their use for prosecutorial purpose]; Woodv. State (Tex. Ct. App. 2009), 299 S.W.3d 200, 209 -210 [autopsy report testimonial where police suspected homicide before autopsy and officer attended autopsy].) The autopsy reports, prepared for the prosecution to prove-an element of the crime charged, are thus “testimonial statements” and Drs. Reddy and Heuser are “‘witnesses’ for purposes of the Sixth Amendment.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) Becausethere was no showing that either Dr. Reddy or Dr. Heuser was unavailabletotestify at trial, Dr. Carpenter should not have been permitted to-testify in their steads. (Ibid) 170 F. The Confrontation Clause Is Not Satisfied by the Testimonyof a Surrogate In Bullcoming, the Court clarified that the defendant’s confrontation rights were notsatisfied by calling a surrogote witness who,asin this case, did not participate in or observe the testing himself: [S]urrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned,i.e., the particular test and testing process he employed. Nor could such surrogate testimony exposeanylapsesorlies on the certifying analyst's part. (Bullcoming, supra, 131 S.Ct. at p. 2715 [footnotes omitted].) As Bullcoming recognized, forensic witnesses are not fungible. Performing an autopsy is far from a simple act. In conducting and reporting the autopsies, Drs. Reddy and Heuser were required to interpret whatthey saw and to exercise professionaljudgment. (See Melendez-Diaz, supra, 129 §.Ct. at-pp. 2537-2538 [methodology used in generating affidavits “requires the-exercise ofjudgment and presents a risk of error that might be explored on cross-examination”]; Nat. Assn. of Medical Examiners,Forensic Autopsy Performance Stds. (Sept. 2006) 27 Am. J. of Forensic Medicine & Pathology no. 3,-stds. B4, B5, pp. 200-225 [pathologist performing autopsy exercises discretion to determine need for -additional dissection and laboratory tests, and is responsible for formulating all interpretations and opinionsas weil as obtaining information necessary to do so].) Dr. Carpenter could nottestify to the skill and judgment of Drs. Reddy and Heuserin performing the autopsies because he wasnotthere. Nor could he testify about whether either doctor deviated from standard proceduresor about how carefully or competently she performed the 171 autopsy and reported her observations. (See Bullcoming, supra, 131 S.Ct. at p. 2715.) As Dr. Carpenter conceded, the doctor who actually performed the autopsy and observed the body was more qualified to form opinions about matters such as whetherthe injuries had been inflicted by two different weapons. (5 RT 1233-1234.) Accordingly, cross-examining the doctor who performed the autopsy wasthe only effective means of exploring her observations and the conclusions she reached based on them. The prosecution clearly wanted jurors to believe that the observations of Drs. Reddy and Heuser were complete, accurate, and reliable. Otherwise, Dr. Carpenter’s opinion was basically worthless. As a result of the prosecution’s election to use Dr. Carpenter to convey to jurors the findings of Drs. Heuser and Reddy, appellant was denied the opportunity to meaningfully test their statements through confrontation and cross-examination. The “Clause does not telerate dispensing with confrontation simplybecause the court believes that questioning one witness about another's testimonial statements- provides-afair enough opportunity for cross-examination.” (Bullcoming, supra, 131 S.Ct. at p. 2716.) Bullcoming did not addressthe situation inwhich anexpert relies.on the testimonial statements of othersin forming his or her own; independent opinion. (Bullcoming,.131 S.Ct. at p. 2722,citing Federal Rule of Evidence 703 (conc. opn. of Sotomayor, J.).) However, the use of the autopsy reports in this case cannot be justified on the ground that Dr. Carpenter was an expert, permitted to rely on testimonial or nontestimonial hearsay in forming his opinions. First, California courts have recognized that “any expert’s opinion is only as goodas the truthfulness of the information on whichit is based.” 172 (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) If an opinion is only as good as the facts on whichit is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination,then it is difficult to imagine how the defendant is expected to “demonstrate that the underlying information wasincorrect or unreliable.”[] According to Crawford, the only constitutionally sanctioned mannerin whichthereliability of testimonial hearsay may be tested is by cross-examination.[] (Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries ofExpert Opinion Testimony (2008) 96 Georgetown L.J. 827, 847-848 [footnotes and citations omitted].) It follows that courts “must prohibit an expert from testifying to an opinion in those cases where the opinion relies upon testimonial hearsay to such an extent that it substantially transmits to the jury the content of the hearsay, unless the defendant has an opportunity to test the hearsay by cross-examination.” (Note, Testimonial Hearsay as the Basisfor Expert Opinion: The Intersection ofthe Confrontation Clause and Federal Rule ofEvidence 703 After Crawfordv. Washington (2004) 55 Hastings L.J. 1539, 1540; see.also Mnookin, Expert Evidence and the ConfrontationClause After Crawford v- Washington (2007) 15 J.L. & Pol’y 794, 822-823 [“[T]opretend that expert basis statements are intreduced for a purpose other than the truth of their contents is not simply splitting hatrs too finely or engaging in an extreme form of formalism.It is, rather, am effort to make an end run around a constitutional prohibition by sleight of hand”) In addition, Evidence Code section 801, subdivision (b), provides that an expert may base an opinion on evidence not otherwise admissible “unless an expert is precluded by law from using such matter as a basis for his opinion.” It follows that as a matter ofstate law an expert may not rely on something as a basis for his or her opinion if 173 it results in a confrontation clause violation. G. The Error in Admitting Dr. Carpenter’s Testimony Was Not Harmless Beyond a Reasonable Doubt The use of testimonial hearsay in this case violated appellant’s rights under the Sixth and Fourteenth Amendments and wasnot harmless beyond a reasonable doubt. (Chapmanv. California (1967), 386 U.S. 18, 24.) The contents of the reports, presented through Dr. Carpenter's testimony, “provided testimony against [appellant]” by establishing “facts necessary for his conviction” (Melendez-Diaz, supra, 129 S.Ct. at p. 2533) — namely, the cause and mannerof death as to both Facundo and Apodaca. (5 RT 1171, 1175-1177, 1179, 1183, 1189.) The erroneously admitted evidence therefore “contribute[d] to the verdict obtained,” and reversalis required. (Chapmanv. California, supra, 386 U.S.at p. 24.) Theerror wasparticularly prejudicial with respect to Apodaca, because appellant’s role, if any, in the stabbing was hotly disputed, and-a critical question was whetherit could be determined from-the autopsy iftwo different weapons were used. Attrial, defense counsel arguedthat appellant’s confession to the Apodaca murder wasunreliable and that he had exaggerratedhis role to further his stated aim of securing a death sentence.(7 RT 1810-1812, 1821-1826, 1829.) Jesse Salazar, whom the prosecution did not contest was the more culpable party, had pled guilty to manslaughter more than ten yearsearlier, and received a sentence of credit for time served. (2 CT Supp.Two 342-348, 350.) Previously, the prosecution tried to implicate appellant by claiming Apodacahad been stabbed with two different weapons, oneinflicting the tiny, superficial wound on the back of the neck. (1 CT Supp. One 37.) In 1998, appellant told police that when Apodaca began toget the better of Salazar, appellant 174 tried to break up their fight, but after Apodaca struck him, he grabbed a screwdriver and stabbed Apodacaontheleft side of his body twoto three times. (2 CT 532.) There were, however, no stab wounds to Apodaca’sleft side. There was a Single, fatal stab woundat the jugular notch and a numberof abrasions on his chest and abdomen.® When Dr. Reddytestified at the preliminary hearing of appellant’s codefendant, Jesse Salazar, she gave inconsistent answers about the extent of her communications with police prior to conducting the autopsy. She first acknowledged that she routinely spoke to police before conducting an autopsy “to learn what they know.” (1 CT Supp. Two 60.) She then backtracked, denying that.she discussedthe facts of a case with the police before the autopsy and insisting that she did not conform herfindings to the facts relatedby the police. (1 CT Supp. Two 61-62.) She initially said she did not remember whowaspresent for the autopsy, then acknowledgedthat, according to the autopsy report, a Detective Jones was present. (1 CT Supp. Two 62-64.) At appellant’s preliminary hearing, Dr. Reddy acknowledged that she had not read the hospital report, even though it was appendedto the coroner’s report, because she could not read the writing. (1 CT Supp. One 49-50.) Dr. Carpenter testified that he did not know if Dr. Reddy had reviewed the hospital records related to Apodaca’s death. (5 RT 1235- 1236.) This strongly suggests that, had Dr. Reddy been called to testify, °8As noted previously, there was one abrasion three to four inchesto the left of the midline (5 RT 1242), but this was on the front of Apodaca’s torso, not on the side of his body. 175 appellant would have had fruitful grounds for cross-examination concerning the extent of Dr. Reddy’s communications with police and how these may have influenced her findings as well as to how thorough her work was, given that she had not taken into account the records ofthe hospital that treated Apodaca. Because the prosecution called Dr. Carpenterto testify instead, the autopsy report was effectively laundered so that appellant was unable to explore any of the potential lapses in Dr. Reddy’s methods. Underthe Confrontation Clause, appellant was entitled to have the jury, not Dr. Carpenter, evaluate the “honesty, proficiency, and methodology” of Dr. Reddy through the crucible of cross-examination. (Melendez-Diaz, supra, 129 S.Ct. at p. 2538; accord Bullcoming, supra, 131 S.Ct. at p. 2715.) Even with the laundered autopsy evidence, the jury convicted appellant of the lesser offense of second degree murder in the Apodaca case. Had defense counsel been able to cross-examine Dr. Reddy andcall her findings into doubt, he could have further strengthened his contention that appellant’s admissions werefalse, resulting in acquittal or conviction of a lesser offense. Because such a finding would have eliminated the only valid special circumstance, appellant would not have beeneligible for the death penalty. Thus, at a minimum, appellant’s conviction for the second degree murder of Raul Apodaca mustbe reversed, as well as the multiple- murder special circumstance. /} ‘ei // // 176 IX. THE TRIAL COURT’S ERRONEOUS REFUSAL TO —_C G SAN UNRELATED ANDHIGHLYPREJUDICIAL ROBBERY CHARGE THAT OCCURRED MORE THAN A DECADE LATER DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND A FAIR AND RELIABLE PENALTY DETERMINATION Thetrial court’s refusal to sever the unrelated robbery charge, for a crime that occurred a decade after the Apodaca and Facundo murders, deprived appellant of a fair trial by improperly bolstering the state’s otherwise weak evidence of intent on the murder charges, resulting in convictions for second andfirst degree murder, respectively, which made appellant eligible for the death penalty. (U.S. Const., 5", 8th and 14th Amends.; Cal. Const., art I, §§ 15 and 16.) A. Relevant Facts Appellant movedbeforetrial to sever counts I (the Facundo murder) and IJ (the Apodaca murder}-from countIII (the robbery ofthe Spartan Burgers restaurant), which occurred more than a decadeafter both of the charged murders and had nothing in common with them. (2 CT 496-511 [Defendant’s Notice ofMotion and Motion to Sever the Trial of CountIII of the Amended Information from Counts I and II (Motion to Sever)]; 3 RT 737-747.) The prosecution conceded evidence concerning the robbery would not otherwise be admissible in either murdertrial or vice versa but disputed whether appellant was prejudiced by the joinder of the charges. (3 CT 598-608 [People’s Opposition to Defendant’s Motion to Sever CountIII from Counts J andII (Opposition to Severance)].) The trial court denied appellant’s motion on the ground that no “serious prejudice” would result from the joinder. (4 RT 752.) 177 The prosecution called Ronni Mandujano,the cashier at the Spartan Burgers restaurantto testify about the robbery. According to Ms. Mandujano, the robber, whom shelater identified as appellant, entered the Huntington Park restaurant around 8 p.m. on January 21, 1998. Ms. Mandujano, the cook, and the owner werein the restaurant. (6 RT 1398- 1399.) Ms. Mandujanotestified appellantfirst ordered food — something that was not on the menu — then pulled out a small black handgun and demanded money. (6 RT 1400-01.) The owner, seeing that Ms. Mandujano was nervous, came over and gave appellant a money box. (6 RT 1401.) Appellant asked the owner if there was more money, and the ownersaid there was moreinthe back of the store. (6 RT 1402.) Appellant then forced Ms. Mandujanoto go with him and the ownerto the back of the store, pointing the gun at her back andthen at her head. (6 RT 1402.) Appellant then directed them backto the front of the store and left. (6RT 1402.) On April 29, 1998, Ms. Mandujano picked appellant out of a six- man photo lineup. (RT 1403-04.) She also identified him in the courtroom. (6 RT 1404.) During closing argument, the prosecutor linked the “robbery of this poorgirl” with themurders, arguing that “when she took the witnessstand, we-all looked at her -- and MaxFacundo's not alive and Raul Apodaca’'s not alive -- and we'resitting there looking atthis girl on the witness stand after hearing what we heard and we thought to ourselves, you know what? I'm so glad you're alive. I am so glad... . [¥]ou looked at her and you thought to yourself, this guy points a gun at her, and we're glad she's here totestify.” (7 RT 1800.) 178 B. Applicable Law Section 954, which governs joinder and severance of counts under ~~“faj charge. . two or more different offenses of the sameclass of crimes”jointly,©the trial court may sever offenses or counts “in the interest ofjustice and for good cause shown.” (People v. McKinnon (2011) 52 Cal.4th 610, 630; People v. Cummings (1993) 4 Cal.4th 1233, 1283.) This “provision reflects an apparent legislative recognition that severance may be necessary in some casesto satisfy the overriding constitutional guarantee of due process to ensure defendantsa fair trial.” (People v. Bean (1988) 46-Cal.3d 919, 935 [finding no misjoinder], habeas relief granted sub nom, Bean v. Calderon (9Cir. 1998) 163 F.3d 1073, 1084 [finding misjoinder amounted to due processviolation].) While section 954.1, enacted-by Proposition 115, states that “evidence concerning-one offense or-offenses need not be admissible as to _the other offense or_offenses before the jointly charged offenses maybe tried together,” that statement essentially codified the preexistingrule that “lack of cross-admissibility is not, by itself, sufficient to show prejudice-and bar joinder.” (People v. Geier (2007) 41 Cal.4th 555, 575, citing Belton v. Superior Court (1993) 19-Cal.App.4th 1279, 1285-1286.) Similarly, article I, section 30, subdivision{a), also enacted by Proposition115, which states that the Constitution “shall not be construed. . . to prohibit the joining of criminalcases as prescribed by the Legislature,” or through the initiative process, is consistent with this Court’s prior rulings regarding joinder and severance. (See, e.g., People v.Memro (1995) 11 Cal.4th 786, 849 [where statutory requirements for.jomder are met, a defendant seeking severance must “clearly establish that there is a substantial danger of prejudice”’].) Thus, “[n]either of these limitations divests trial courts of their discretion under Penal Code section 954 to sever cases, otherwise properly joined, ‘in the interests ofjustice.’” (Belton v. Superior Court, supra, 19 Cal.App.4th at p. 1285.) 179 Thetrial court’s decision is reviewed for abuse of discretion,in light of the record before the court at the time of its ruling. (People v. McKinnon, supra, 52 Ca.4th at p. 630; People v. Gutierrez (2002) 28 Cal.4th 1083, 1120; People v. Price (1991) 1 Cal.4th 324, 388.) Wherethe charges include capital murderthe exercise of that discretion is reviewed with the highest degree of scrutiny. (Williams v. Superior Court (1984) 36 Cal.3d 441, 454, superceded bystatute in part as stated in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19 (Alcala).) In Alcala, this Court concluded that the “heightened analysis” required in Williams is “no longer called for”in light ofthe passage of section 790, subdivision (b), which provides specifically for the joinder of capital cases. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1229, fn. 19.) At the same time, Alcala continuedto list “whether one of the charges is a capital offense, orthe joinder of the charges converts the matter into a capital case’”as a factor to be considered in reviewing a trial-court’s ruling on a motion for severance. (/d. at p. 1221; accord People-v. McKinnon, supra, 52 Cal4th at p.630.) Appellant submits that heightened scrutiny is still required by the.Eighth Amendmentas joinder may heighten therisk of While “the law prefers” consolidation (see, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 408), the grounds which generally support “consolidation and demonstrate its efficiency do not apply here. Thus, consolidation. “ordinarily avoids needless harassment of the defendant and the waste ofpublic funds which mayresult if the-same generalfacts [are] tried”in separatetrials (id. at p. 409); but appellant implicitly waived any claim that separate trials would constitute harassment (see Williamsv. Superior Court, supra, 36 Cal.3d at p. 451 [concern about needless harassment of defendantis “totally irrelevant [where] it is the defendant whohas movedfor separatetrials, thereby waiving this concern”]). Moreover, the same facts would not have been retried in separatetrials, becausethe facts relevant to the various charges were distinct. 180 an “unwarranted conviction” in a capital case. (Beck v. Alabama (1980) 447 U.S. 625, 637-638; cf. Gregory v. United States (D.C. Cir.1966) 369 ee F.2d 185, seriouslyquestionedit is In amy capital case to join trial offenses occurring at different times and places. The dangerarising from the cumulative effect of evidence of other offenses on the mindsofthe jurors is too great to tolerate in such cases”’].) The misjoinder of charges violates the due process clauses of the federal Constitution if it renders a defendant’s trial fundamentally unfair. (Bean v. Calderon, supra, 163 F.3d_at p. 1084, citing United States v. Lane (1986) 474 U.S. 438, 446, fn. 8 and Featherstone v. Estelle (9th Cir.1991) 948 F.2d 1497, 1503; see also People v. McKinnon, supra, 52 Cal.4th atp. 632 [“A pretrial ruling that was correct when made can be reversed on appeal only ifjoinder was so grossly unfair as to deny due process”] C. The Trial Court Abused its Discretionby Denying Appellant’s Motion to SeverMurder and Robbery Cases thatOccurred More than a Decade-Apart and Were Not Cross-Admissible,Resulting in a Highly PrejudicialSpill- Over Effect The denial of a motion to sever “may be an abuse ofdiscretion if the evidencerelated to the joined-counts is not cross-admissible; ifevidence relevant to somebutnotall of the counts is highly inflammatory;if a relatively weak case has been joined with a strong case so as to suggest a possible ‘spillover’ effect that might affect the outcome; or one of the charges carries the death penalty.” (People v. McKinnon, supra, 52-Cal.4th at p. 630, quoting People v. Cummings, supra, 4 Cal.4th at p. 1283.) Cross-admissibility — “whether the evidence pertinent to one case would have been admissible in [a separatetrial of] the other under Evidence Code section 1101, subdivisions (a) and (b) — is evaluated first, because 181 ““cross-admissibility would ordinarily dispel any possibility of prejudice.’” (Belton v. Superior Court, supra, 19 Cal.App.4th at p. 1283, quoting Williams v. Superior Court, supra, 36 Cal.3d at p. 448.)”' If the evidenceis not cross-admissible, the trial court must consider the potential for prejudice with respect to the remaining factors. (See People v. Thomas (2011) 52 Cal.4th 336, 350; Williams v. Superior Court, supra, 36 Cal.3d at pp. 448, 451-452; Belton v. Superior Court supra, 19 Cal.App.4th at p. 1284; Coleman v. Superior Court (1981) 116 Cal.App.3d 129,139-140.) 1. Cross-admissibility While the cross-admissibility of evidence “is not the sine qua non of joint trials” (People v. Marquez (1992).1 Cal.4th 553, 572), whether the evidence of these separate charges was cross-admissible is still a key consideration in deciding whether it was proper to join them fortrial. (People v. Memro, supra, 11 Cal.4th at p. 850.) If “[j]oinderis generally proper when the offenses would be cross-admissible_in separate trials” (People v. Arias (1996) 13 Cal.4th 92, 126), itfelHowsthat joinderis less appropriate where the evidence is not cross-admissible.” Indeed, “there is Evidence Code section1101, subdivision (b), allows the-admission of evidence of the defendant’s past conduct,including uncharged crimes, wherethe evidence is relevant to prove some-fact other than the disposition to commit the crime, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. While section 954.1 “prohibits the courts from refusing joinder strictly on the basis of lack of cross-admissibility of evidence” (Beltonv. Superior Court, supra, 19 Cal.App.4th at p. 1285 [italics added]), nothing in section 954.1, or the cases construing it, suggests that the absence of cross-admissibility cannot be considered as a factor weighing against joinder. (See People v. Osband (1996) 13 Cal.4th 622, 667 [section 954.1 codifies rule ofPeople v. Sandoval (1992) 4 Cal.4th 155, 173, that lack of cross-admissible evidenceis not sufficient to establish prejudice].) 182 ‘a high risk of undue prejudice whenever... joinder of counts allows evidence of other crimes to be introducedin trial of charges with respect to therwiseve Calderon, supra, 163 F.3d at p. 1084, quoting United States v. Lewis (9th Cir.1986) 787 F.2d 1318, 1321.) This is because jurors at a jointtrial cannot adequately “compartmentalize” damaging information about the defendant, and becausesucha trial often “prejudice[s] jurors’ conceptions of the defendant and ofthe strength of the evidence on both sides of the case.” (United States v. Lewis, supra, 787 F.2d at p. 1322; accord Bean v. Calderon, supra, 163 F.3d at p. 1084; Hein, Joinder and Severance (1993) 30 Amer. Crim. L.Rev. 1139, 1144-1145 [joinder of counts has a synergistic impact” which bolsters weak charges with evidence of stronger ones; risk of conviction “rises substantially when offenses are joined”’].) Here, the prosecution did not argue, andthe trial-court didnot find, that the evidence of the Spartan Burgers robbery was cross-admissible as.to either murder charge. As appellant emphasized, the crimes were committed over a decade apart and differed in almost every respect: (1) appellant knew both of the victims in the murder cases but the victim of the robbery was a stranger; (2) neither murder was committed for financial gain- Max Facundowaskilled to protect appellant’s cousin Charlene from further domestic violence at Facundo’s hands and Apodaca waskilled in abrawl among associates; and (3) the murders were committed with a knife or other sharp instrument while the robbery was committed with a gun. In these circumstances, the prosecution properly did not claim there was any similarity, or commondesign or plan between the offenses. Indeed, the prosecution did not allege the murders and robbery had any relevance whatsoeverto one another. (3 CT 601 [Opposition to Severance].) Their 183 argument wassolely that appellant had not demonstrated that he would be prejudiced by the joinder. (3 CT 607.) As discussed further below,this claim waserroneous. 2. Prejudicial Effect a. Inflammatory Evidence This Court has recognized that error arises when thetrial court joins an inflammatory charge with a less egregious one “undercircumstances wherethejury-cannot be expected to try both fairly.” (People v. Mason (1991) 52 Cal.3d 909, 934.) “The danger to be avoidedis ‘that strong evidence of a lesser but inflammatory crime might be usedto bolster a weak prosecution case’ on another crime.” (/bid., quotingPeople v. Walker (1988) 47 Cal.3d 605, 623.) The evidence of the robbery was inflammatory because it involved - the useof a firearm, against a stranger, for the purposeof financial gain. In contrast to the murder cases, which each involved victims knownto appellant and extenuating circumstances, the robbery of a stranger served to invoke jurors’ fears of crime — the most potent of whichis the fear of being preyed on by a stranger with a gun. (2 CT 505-506 [Motion to Sever].) b. Joinder OfA Weak Case WithA Stronger Case Joinder should never be a vehicle for bolstering one or two weak cases against a defendant. (Williams v. Superior Court, supra, 36 Cal.3d at pp. 453-454; see also Bean v. Calderon, supra, 163 F.3d at p.1085 [potential for undue prejudice from joinder of strong evidentiary case with a weaker one]; Lucero v. Kerby (10th Cir. 1998) 133 F.3d 1299, 1315 [danger in consolidation of offenses because state may join a strong evidentiary case with a weaker one hoping that an overlapping consideration of the evidence 184 will lead to convictions of both].) Even where joinderis technically proper, severanceis favored if there is a great disparity between the gravity of the —_—————t the different counts, there is the possibility that the defendant will be convicted due to the prejudicial atmosphere created by the joinder and not by the evidenceitself. (See Williams v. Superior Court, supra, 36 Cal.3dat p. 453.) Asappellant argued below, the murder cases were weak with respect to the level of intent involved, whereas the robbery demonstrated an unambiguouscriminal intent. (2 CT 506-507 [Motion to Sever.]) c. The Charges Included A Capital Offense Because the Apodaca and Facundo cases wereboth alleged to be capital offenses, this Court must “analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case.” (Williams v. Superior Court, supra, 36 Cal.3d at p. 454; see also People v. Lucky (1988) 45 Cal.3d 259, 277; People v..Smallwood (1986) 42 Cal.3d 415,430-431.7) The prosecution argued below that joining the robbery charges with the murder did not affect the likelihood of the death penalty being imposed for either murder charge, asserting that “defendant’s attempt to associate a premeditated and deliberate intent to kill, with an intent to deprive certain victims of their property is groundless.” (3 CT 606-607 [Opposition to ™%n People v. Bean (1988) 46 Cal.3d 919, 939,this Court disapproved People v. Smallwood (1986) 42 Cal.3d 415, 429, to the extent that it conflicted with Williams v. Superior Court, supra, 36 Cal.3d 441, 452, and other cases holding that the defendantcarries the burden of showing potential prejudice on a motionto sever. 185 Severance].) This argument assumes there was no question that appellant possessed the most culpable state of mind as to the murders and thusthat the mere intent to deprive someoneofproperty could not possibly be prejudicial in comparison. It was, however, precisely because the existence of “a premeditated and deliberate intent to kill” was very much in dispute that the joinder of the robbery charge wasprejudicial. (3 RT 740, 743-744.) This prejudice was realized at trial: After successfully opposing the severance motion, the prosecutor in closing argument specifically invéked the robbery to do precisely what the defense had warned against — to urge the jury fo resolve against the defense any doubts about appellant’s state of mind. The prosecutor argued that though appellant had admittedto the murders while on the stand, he had not similarly taken responsibility for the robbery, committed against “this poorgirl,” because it was a cowardly act, “and he doesn'twant to admit to that.” (7 RT 1800.) The prosecutor invitedthe jury toinferfrom appellant’s willingness to “point[] a gun at her” that he wasa cold-blooded murderer who wouldjust as easily have killed Ms. Mandujano as robbed her: “and Max Facundo's not alive and Raul Apodaca's notalive -- and we're sitting there looking at this girl on the witness stand after hearing what we heard and we thought to ourselves, you know what? I'm so glad you're alive.” (7-RT 1800.) While the prosecution asserted in its responsive pleading that “[t]he murder chargescarry their own felony-murderspecial circumstances,”this is not correct. (3 CT 606.) There was no felony-murder special circumstancealleged as to either murder. (1 CT 108-114 [Amended Information, filed January 22, 1999].) The prosecution did allege the multiple-murder special circumstance (ibid.), but this would not have been 186 found true if appellant had been convicted only of manslaughter in the Apodaca case. Because robbery wasused by the prosecution to improperly robbery charge directly affected appellant’s eligibility for the death penalty, as discussed further below. d. The Benefits Of Joinder Were Minimal In contrast to the potential for prejudice discussed above, the benefits ofjoinder were negligible. (See People v. Bean, supra, 46 Cal.3d at p. 936, 940 [benefits ofjoinder must be weighed against prejudicial effect]; People v. Smallwood, supra, 42 Cal.3d at p. 430.) These cases involved no commonwitnesses — other than a police officer to lay the foundation for the admission of appellant’s confession into evidence. Since the evidence of the charges wasnot cross-admissible, “there simply was no significant judicial economyto be gained from joinder.” (People v. Smallwood, supra, 42 Cal.3d at p. 430.) To the contrary, thetrial was already complicated by trying the two murder cases — which occurred six months apart and were completely unrelated — together, requiring the prosecutor to constantly ask the jury to switch its attention from one crimeto the other. (See, e.g. 6RT 1365, 1385, 1396, 1407, 1517.) The addition ofa_third offense, which occurred more than a decadeafter the other two cases and wasunrelated to either of them, served to only further confuse the presentation of evidenceattrial. 666Here, as in Smallwood,““‘[t]he only real convenience served by permitting jointtrial of [these] unrelated offenses against the wishes of the defendant [was] the convenienceofthe prosecution in securing a 999conviction.’” (People v. Smallwood, supra, 42 Cal.3d at p. 430, quoting United States v. Foutz (4th Cir. 1976) 540 F.2d 733, 738.) Moreover, even 187 if separate trials would have involved additional time and expense,“the pursuit ofjudicial economy must never be used to deny a defendanthis right to a fair trial.” (Williams v. Superior Court, supra, 36 Cal.3d at pp. 451-452; see also People v. Smallwood, supra, 42 Cal.3d at p. 428.) It was thus an abuse of discretion to try the robbery and homicide charges together. 3. Reversal Is Required The joinder of the stronger evidence of the robbery caused an improper“spillover effect” resulting in the first degree murder verdict for Facundo and a second degree murder verdict for Apodaca because,“in the jurors’ minds, [the two cases. became] one case which [was] considerably stronger than [either of them] viewed separately.” (Williams v. Superior Court, supra, 36 Cal.3d at p. 454.) Asto. the-Apodaca homicide charge, there was doubt whether appellant actuallyparticipated in-the stabbing, inflicted only a single superficial wound, or was simply a bystander, as his confession was inconsistent with the-physical evidence. Moreover, even if appellant’s confession wascredited, there was a strong argumentthatit established only manslaughter, based on provocation. ‘Similarly, with respect to the Facundo murder, althoughthetrial court erroneously denied appellant’s requested instructions on imperfect defense of another, the jury could reasonably have found him guilty of second degree murder. Instead, he was convicted offirst degree murder. The prosecutor used the robbery charge in his summation to support his argument that both murders were premeditated and deliberated, maintaining that appellant’s criminal disposition was such that Ms. Mandujano waslucky she was not a murder victim herself. This argument 188 wentto the heart of the defense to both of the murder charges. In the Apodacacase, appellant was convicted of second degree murder, indicatingt jury did inits entirety Absent the prejudicial effect of the joinder, appellant could well have been convicted of manslaughter only, in which case there would have been no multiple-murder special circumstance. This verdict would have been consistent with the conviction of appellant’s co-defendant and with the magistrate’s 1987 order, holding appellant to answer only for manslaughter on this charge. (2 CT Supp.Two 342-348, 350 [Salazar]; 2 CT 356, 421 [appellant].) Because as set forth in ArgumentI, supra, the prior murder conviction on which the_prosecution relied to establish the second special circumstance was invalid, appellant would not have been eligible for the death penalty. Thus, what this Court foresaw in Williams happened here: At the prosecutor’s urging, “the iury []-aggregate[d] all of theevidence, though presented separately in relation to each charge,and convict[ed}-on[all] chargesin a joint trial, whereas, at least arguably, in separatetrials, there might not be convictions-_on [all] charges” — or there might havebeen convietions-of lesser offenses — and appellant would not have been subject to the deathpenalty. (Williams v. Superior Court, supra, 36 Cal.3d at p. 453.) This Court-has said that an assertedly erroneous joinder may be upheld on appeal“in [a] capital case[] . . . where the evidence on each of the joined chargesis so strong that consolidation is unlikely to have affected the verdict.” (People v. Lucky, supra, 45 Cal.3d at p. 277, citing People v. Smallwood, supra, 42 Cal.3d at pp. 429-430.) The evidencein this case did not meet that standard. 189 D. The Trial Court’s Failure To Sever The Charges Made Appellant’s Trial Fundamentally Unfair Thetrial court’s abuse ofits discretion in this case rendered appellant’s trial fundamentally unfair, in violation ofthe federal andstate constitutions. (U.S. Const., 5", 6", 8", and 14" Amends.; Cal. Const., art I, §§ 15, 16, and 17; People v. Arias, supra, 13 Cal.4th at p. 127; Bean v. Calderon, supra, 163 F.3d at p. 1084.) Accordingly, reversal is required becausethe state cannot establish that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Reversal is also compelled understate law because failing to sever the robbery and homicide charges resulted in demonstrable prejudice to appellantin this capital case. (People v. McKinnon, supra, 52 Cal.4that p. 630 [defendant must show prejudice].) Trying these chargestogether also violated appellant’s right to be tried by an unbiased jury, underarticle I, section 16 ofthe California Constitution, and the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, which is a structural defect requiring reversalper se. (People v. Wheeler (1978) 22 Cal.3d 258, 265-266, disapproved on other groundsin Johnsen v. California (2005) 545 U.S. 162; -Gray v. Mississippi (1987) 481U.S. 648, 668.) Further, appellant had a constitutionally- protected liberty interest in the correct application of state laws governing joinder and severance, and joining these offenses deprived him ofthe process due to him understate law, in violation of his federal due process rights. (U.S. Const., 5® & 14” Amends.; Hicks v. Oklahoma (1980) 447 U.S. 343, 346-347.) Finally, given the prejudicial effect ofjoinder in this case, the jury’s verdict cannot be considered reliable, and therefore violates the Eighth Amendment. (Beck v. Alabama, supra, 447 U.S.at p. 643.) 190 X. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCELE TER_______—_ -— ATTORNEY GOADING HIM TO SEEK THE DEATH PENALTY AS THE LETTER WAS FAR MORE PREJUDICAL THAN PROBATIVE UNDER EVIDENCE CODE SECTION 352, MISLED THE JURY AND UNDERMINED THE RELIABILIT¥ OF THE SENTENCING PROCESS Thetrial court improperly admitted, over defense objection, a highly inflammatory letter appellant wrote to the elected District Attorney, demanding the death penalty and threateningto kill someoneelse if he was not sentenced to death. The letter was not relevant to any legitimate issue in the case and any marginal relevance it did have was far outweighedby the danger of unfair prejudice. (Evid. Code, § 352.) Admission ofthe letter, which becamea focal point of the prosecution’s penalty phase closing argument, violated appellant’s constitutional rights to a fair trial and to a fair and reliable sentencing. (U.S. Const. 5", 6", 8°"-& 14" Amends.) A. Proceedings Below In September 1998,shortly-before his preliminary hearing and while he wasrepresentinghimself, appellant wrote-ahighly provocative letter to then-Los Angeles County DistrictAttorney, Gil Garcetti. In theletter, appellant expressed his desire to be sentenced to death. He took responsibility for both the Apodaca and Facundo murders-but in each instance addedfictitious aggravating circumstancesto his description of them. Appellant denied the existence of any mitigating circumstances concerning his mental state, denied in the most inflammatory termsfeeling any remorse, taunted Mr. Garcetti to prove his manhood bysecuring a death sentence, and threatened to kill someonein prison if he did not receive the 191 death penalty in thistrial: MR. GARCETTI: WITHOUT BEATING AROUND THE BUSH AND/OR TRYING TO ARTICULATE MYSELF IN ANY CERTAIN AND LEGAL TERMINOLOGY, PLEASE ALLOW ME TO GET RIGHT TO THE POINT: WHEN I MURDERED MAX FACUNDO(FOR HIRE) IN JUNE OF ‘86 AND THEN MURDERED RAUL APODACA IN FEBRUARY OF *87 WHILE I WAS ROBBING HIM. I WASN’T DRUNK; I WASN’T UNDER THE INFLUENCE OF ANY DRUG AND I DEFINATELY(sic) WASN’T SUFFERING ANY MENTAL DISORDERI.E. RETARDATION! INSTEAD, I WAS FULLY AWARE OF ALL OF MY MENTAL FACULTIES. IN OTHER WORDS, I KNEW EXACTLY WHAT THE FUCK I WAS DOING, AND JUST AS I FELT THEN I FEEL TODAY- THAT THE BOTH OF THOSE COWARDS DESERVED WHAT THEY GOT: DEATH AND AN EARLY EXPIRATIONIN LIFE, TO SAY THE LEAST! NEEDLESSTO SAY, SIR, [EXCLUDED AT GUILT PHASE:JDIDN’T FEEL BAD ABOUT THEIR UNTIMELYDEMISE THEN, NOR DID IREGRETMYACTIONS INANY WAY, SHAPE OR FORM - AND IDEFINATELY(sic) DON’TSHARE/EXPERIENCE THOSE FEELINGS & EMOTIONS TODAY! ASA MATTER OF FACT, IF] 1 HAD THE OPPORTUNITY TO DO IT OVER I WOULD CUT-OFF THEIR HEADS AND SEND ‘EM BOTH TO THEIR FAMILY! SO, YOU NEEDN’T “CRY FOR ME ARGENTINA,” BECAUSE I’M MORE THAN READY, WILLING AND ABLE TO FACE THE MUSIC AND ACCEPT RESPONSIBILITY FOR MY ACTIONS, AS WELL AS PAY WHATEVERPRICE THERE IS TO PAY — FOR-““PLAYING THE GAME”! YES. ITIS ALL A BIG GAME, AND THE GNLY REASON I LOST PART OF THE GAME,IS BECAUSE I GOT CAUGHT,THAT’S ALL. [EXCLUDED AT GUILT AND PENALTY-PHASE:BUT, IDIDN’T GET CAUGHTFOR TWO (2) OTHER 1878 THATI COMMITTEDINPRISONSO I GUESS THATYOU CANSAYI’MBATTING .500, RIGHT? ©] [EXCLUDED AT GUILT PHASE: JNANY CASE, SIR, IF “YOU” DON’THAVE ENOUGHBALLS & GUTS TO GIVEME WHATIDESERVE, BY SENDING MYASS TO THE “GAS CHAMBER,’ THENMYONLY OTHER RECOURSEIS TO KILL SOMEONE ELSE— ONCE IRETURN TO PRISON — IN ORDER TO FINALLYRECEIVE THE “ULTIMATE PUNISHMENT” THATEVEN THE MAN UPSTAIRS KNOWS IDESERVE! SO, IF YOU WANT THAT ON YOUR CONSCIENCE, THEN THAT’S ENTIRELY UP TO 192 YOU!| BUT, WHATEVER YOU DECIDE TO DO, YOU CAN REST ASSURED, AND BET YOUR LAST MONEY THAT TOMMY ADRIAN TRUJEQUE AKA “EL KILLER DE VARRIO WHITE FENCE” WILL —_———MOSTDEFINATELY(Sic) ENDEAVORS! YOU CAN BELIEVE THAT,IF NOTHING ELSE! AND IF YOU’RE THINKING THATI AM JUST ONE OF THOSE PSYCHOTIC & PARANOID SYCHSOPHRENICS(sic) THAT WILL SOMEDAY ALL OF A SUDDEN SWITCH HIS ATTITUDE, STATEMENTS AND TRUE FEELINGS TO THE COMPLETE OPPOSITE OF WHAT THEY ARE TODAY — AS SOME IDIOTS ON DEATH ROW HAVERECENTLYDID (sic), LET ME ASSURE YOU THAT YOU’RE WASTING YOUR TIME & ENERGY! WHY? BECAUSE I’M 110% SINCERE IN MY DECLARATIONS AND I AIN’T CHANGING JACK SHIT ABOUT WHATI’?VE SAID TO YOU OR ANYONE ELSE — IN REGARDS TO THE TWO (2) COWARDSTHAT I AM PROUD OF TAKING OUT! [EXCLUDED AT GUILT PHASE:YEs, |.4MCURRENTLY REPRESENTING MYSELFAND PLAN TO DO SO FOR THE DURATION OF THESE PROCEEDING — BECAUSE IDON’TNEED SOME MOUTHPIECE TO TRYAND TELL MEWHAT TO SAYAND WHATNOT TO SAY~ NOR DO_IDESIRE TO HAVE ONE REPRESENTME! I’M VERY CAPABLE OF DEFENDING MYSELFIN THE JUDICIAL SYSTEM, AS IHAVEMANY TIMES BEFORE! MY ONLYHOPE IS THATSUCH PROCEEDINGS WON’TDRAG ONAND LASTFOREVER AS THERE IS ABSOLUTELYNO NEED FOR DELAYS! ATLEAST INMYEYES ISEE NO NEED FOR ANY!] IN CLOSING, I SAY THIS: WHATEVER YOU PLAN TO DO WITH THIS LI’L INCRIMINATING NOTE (AS YOU PROBABLY REFER TO IT AS) IS ENTIRELY UP TO YOU! IT MAKES NO DIFFERENCE TO ME! FOR ALL I CARE, YOU CAN RUB IT IN YOUR CHEST, MR. DISTRICT ATTORNEY! SINCERELY YOURS, TOMMY A. TRUJEQUE (Peo. Ex. 8B for identification; Peo. Exs. 8 & 8A) During the guilt-innocence phase ofthetrial, the prosecutor announcedhis intention to introduce the letter into evidence. (6 RT 1424.) Defense counsel promptly objected that the letter should be excluded under Evidence Code section 352, pointing out that the letter, the purpose of 193 which was to secure a death sentence, was riddled with inaccuracies and inflammatory language and had no probative value. (6 RT 1424, 1454- 1455; 4 CT 972-984 [Notice of and Motion to Exclude Prejudicial Evidence,filed August 23, 1999].) Thetrial judge, who characterized the letter as “probably one of the most literal and coherentletters and eloquent letter, in its own way,that I've read in a long time” (6 RT 1442), agreed to exclude, at the guilt phase, appellant’s reference to committing two other murders for which he had not been caught; appellant’s claim to have no remorse; and appellant’s threat to kill again in order to secure a death sentence.” (6 RT 1443-1444.) Defense counsel argued that appellant’s claim to be proud of what he’d done should be excludedas further expressing lack of remorse, but the prosecutor maintained the statement wasrelevant to prove premeditation. (6 RT 1445.) Similarly, the prosecutor argued that the sentence: “IfI had the opportunity to do it over I would cut off their heads and send ‘em both to their family!” was relevant to rebut the argument that either murder wasa voluntary manslaughter. (6 RT 1461.) The judge, who hadinitially said that this statement was inadmissible, reversed himself and allowedit in. (6 RT 1443.) Duringthe trial, the prosecutor questioned appellant extensively aboutthe letter, including asking him abouthis claims that the Facundo murder wasfor hire and that he had killed Apodaca during a robbery: “isn’t this all the stuff that makes you eligible for the death penalty?” (7 RT Trial counsel argued that lack of remorse wasnotrelevantat the guilt-innocence phase,initially suggesting it might be relevant at the penalty phase, but counsel later opposed theletter’s admission at the penalty phase as well. (6 RT 1443, 1454.) 194 1681-1687.) Appellant claimed not to know whata special circumstance was and wasgenerally noncommital in responseto the prosecutor’s questions. (Zbid.) At the penalty phase, over renewed defense objection,thetrial judge admitted a different version ofthe letter into evidence,this time including the previously redacted portions, except for the claim to have committed two other murders. (9 RT 2267-2268; Peo. Ex. 8A.) In his opening argumentat the penalty phase, the prosecutor emphasized that in his letter to Mr. Garcetti, appellant had threatened to kill someonein custody if he did not get the death penalty. (8 RT 1890.) Again,in closing, the prosecutor remindedthe jury, “the most important thing that sets a theme to this closing argumentis the defendant's letter”: Andyou haven't had the opportunity to readthis portion because it was blocked out before because it wouldn't_have been right to give it to you in guilt phase. But he saysin his letter that he writes to the district attorney, “in any case, sir, if you don't have enoughballs and guts to-give me whatI deserve by sending myass to the-gas chamber, then my only other recourseis to kill someone else once J return to prison in order to finally receivethe ultimate punishment even the man upstairs knowsI deserve.” (11 RT 2957.) He then urged the jurors to sentence appellant te death, because “by doing so, you know,in your mind asjurors that you've done everything you can so that that last sentence doesn't happen.” (/bid.) B. The Letter was not Admissible at the Guilt-Innocence Phaseof the Triat Under Evidence Code section 352, a trial court must exclude even relevant evidenceif “its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “Evidenceis 195 prejudicial within the meaning of Evidence Code section 352 if it ‘uniquely tends to evoke an emotionalbias against a party as an individual’ [citations] 66%or if it would cause the jury to ‘“prejudg[e]” a person or cause on the basis of extraneous factors’ [citation].” (People v. Cowan (2010) 50 Cal.4th 401, 475; accord People v. Kipp (2001) 26 Cal.4th 1100, 1121; People v. Bolin (1998) 18 Cal.4th 297, 320.) Thus, “evidence should be excluded ‘whenit is of such nature as to inflame the emotionsofthe jury, motivating them to use the information, not to logically evaluate the point upon whichitis relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose’ [citation].” (People v. Mendoza (2011) 52 Cal.4th 1056, 1091-92, quoting People v. Howard (2010) 51 Cal.4th 15, 32.) If the proffered evidence is of dubiousreliability, its probative value is necessarily diminished and therefore of less weight in the balancing precess. (See-People v. Maury (2003) 30 Cal.4th 342, 432-433 [trial court properlyexcluded evidence under Evidence Code section 352 given its “doubtful reliability”]; People v. Ewoldt (1994) 7 Cal.4th 380, 404 [source andreliability of other crimes-evidence considered in assessing probative value]; People-v. Harris (1989) 47 Cal.3d. 1047, 1094 [Cal. Const., art. 1, § 28, subd. (d), declaring that no relevant evidence shall be excluded in a criminal proceeding, does not mandate admission of unreliable evidence; unreliability of evidence diminishes its relevance and probative value and hence may be excluded on those grounds undersection 352].) For example, in People v. Coleman (1985) 38 Cal.3d 69, this Court held that letters written by a homicide victim a substantial time before the crime, stating that the defendant had talked about killing his family, should 196 have been excluded under Evidence Codesection 352, because theletters were far more prejudicial than probative. (/d. at pp. 81-83.) In its had been found inadmissible as unreliable hearsay, where the author had “a | motive to misrepresent or exaggerate the conduct of the accused.” (/d. at p. 85.) The probative value of appellant’s letter to Mr. Garcetti was negligible. The letter added nothing in terms of actual evidence of appellant’s guilt: the prosecution had already introduced appellant’s confession, through Detective Durazo, and presented the testimony of several other witnesses concerning both the Facundo and Apodaca homicides. Appellant’s admissionsof guilt in the letter were therefore entirely cumulative and, as defense counselstressed, the letter was riddled with hyperbole, untruths, and deliberately provocative andoffensive statements designed to appeal to jurors’.fears and emotions. The danger of unfair prejudice therefore greatly_outweighed whatever minimal probative value the letter had and shouldhaverendered it inadmissible. Like the letters excluded in People v. Coleman, supra, appellant’s letter was unreliable because its author — in this case, appellant — had “a motive to misrepresent or exaggerate the conduct of the accused.” (People v. Coleman, supra, 38 Cal.3d at p. 85.) Outside the presence ofthe jury, the prosecutor acknowledged that appellant’s claims that he “murdered” Apodaca “while I was robbing him” and had “murdered” Facundo “for hire” were not true and that appellant was just “bragging” and asserting the existence of additional special circumstances (robbery and financial gain) in 197 an effort to enhance his chancesof getting a death sentence.” (7 RT 1701- 1702.) Nevertheless, the prosecutor claimed, andthetrial judge agreed, that Forthis reason, appellant’s letters are different from thoseat issue in People v. Kipp, supra, in which a capital defendant wroteletters to his wife which were intercepted by prison staff. (People v. Kipp, supra, 26 Cal.4th at pp. 1120-1122.) Kipp wrote the letters after he had been convicted of one murder and was awaiting sentencing for that offense, several years before his trial and sentencing for a second murder, at which the letters were introduced. Kipp sought to-exclude the intercepted letters which included admissions, references to Satan, and threats of future violence. (/d. at p. 1122.) First, while Kipp claimedhis letter contained false admissions made while he was angry and dejected after his conviction, the letters were not — as in this case — directedtothe prosecutor with the stated intention of securing a death sentence; they were written to his wife. (People v. Kipp, supra, 26 Cal.4th at p. 1120.) This-court rejected Kipp’s claim of unreliability, on the groundthat he had not “plausibly explainfed]” what “Wwould_cause him.to falsely admit culpability for crimes he had not eommitted.” (Ud. at p. 1122.) The Court did acknowledge that Kipp admitted to sodomizingthe victims, though there-was no evidence of sodomy, but-concluded that-even if these statements “could be attributed to exaggeration or embellishment” they did not “substantially detract[ ]” from the-defendant's admission that ~he, rather than someoneelse,-had committed the murder and rape. (People v. Kipp, supra, 26Cal.4th at p. 1122.) Here, as discussed above, appellant’s admissions did not add anything to the prosecution’s evidence, which included other admissions by appellant. Moreover, the prosecution admitted — appellant’s letters contained false statements that enhancedhis culpability. Thus, the letters in Kipp were not as unreliable as the tetter in this-case and had-moreplausible probative value. Second,the letters in Kipp werealso relevant to a legitimate issueat the penalty phase. Kipp’s letters contained threats of violence against prison staff and references to Satan. Kipp unlike appellant, however, presented evidence of his good character and remorse in mitigation, arguing that the murders werea brief aberration. Thus, unlike appellant, Kipp opened the doorto his letters being introduced to rebut his case in mitigation. (People v. Kipp, supra, 26 Cal.4th at pp. 1132-1133, 1134- 1135.) 198 the letter was admissible becauseit “screams premeditation and deliberation.” (6 RT 1445.) Specifically,arguedjust |—-— felt then I feel today - that the both of those cowards deserved what they got,” was relevant to prove premeditation (6 RT 1445) andthat the sentence: “If I had the opportunity to do it over I would cut off their heads and send‘em both to their family!” was relevant to negate the defense of provocation and to contradict the argumentthat either murder was a voluntary manslaughter. (6 RT 1457, 1461.) In fact, neither sentence speaks to appellant’s state of mind at the time of the incidents as muchas both speak to appellant’s desire, over a decadelater, to secure a death sentence — by making provocative claims about his lack of remorse. The prosecutor had properly concededthat lack of remorse wasnotrelevant at the guilt phase of the trial, agreeing that the sentence “I didn’t feel bad about their untimely demise then, nor did I regret my actions in any way, shape or form - and J definately (sic) don’t share/experience those feelings & emotions today!” was not admissible at the guilt-innocence-phase. (6 RT 1457, 1460.) Appellant’s highly inflammatory statement about cutting off heads immediately follows this excluded sentence andis an illustration of appellant*s asserted lack of remorse. It therefore should have been excluded along with the preceding sentence, of which it was a continuation. Moreover, the assertion that the victims got what they deserved or that appellant would do it again was not inconsistent with a voluntary manslaughter argument based on provocationor imperfect defense of another. In both cases, the defendant would be expected to believe, after the fact, that the killing was justified. 199 In any event, whatever marginal relevance these assertions may, theoretically, have had to appellant’s state of mind 13 or 14 yearsearlier was negated completely by their unreliability, appearing as they did ina letter which the prosecution conceded contained numerousinaccuracies and exaggerations and was intended by appellant to secure a death sentence. Just as appellant made false statements about the circumstancesofthe crimes to appear more culpable, the accompanying, outrageous and provocative statementswere for the-same effect. These statements included referring to cutting off the victims’ heads and sending them to their families, characterizing the crimes as a “big game,” claiming to be proud of “taking out” the “two cowards,” and — admitted at the penalty phase — questioning whether Mr. Garcetti had “the balls” to “send{] myassto the gas chamber”and threateningto kill someoneelse to get a death sentence. Appellant’s purpose was madestill more clear by his invitation to Mr. Garcetti to use “this 1’il incriminating note” however he pleased—1.e., to persuadeajury to convict appellant of special circumstances-murder and sentence him to death. Theletter thus aided the prosecution’s case primarily by shocking and frightening the jury. This is precisely the type-ofprejudice Evidence Code section 352 is supposedto prevent: the introduction of evidencethat invites the jury to resolve the case on the basis of emotion andfear. (See, e.g. People v. Rivera (2011) 201 Cal.-App.4th 353, 365 [demonstration of murder by defendant in court was unduly prejudicial where it was “likely to inflame the emotions of the jury and evoke an emotionalbias, while having exceedingly negligible probative value, if any, on the issues”’].) Indeed, having arguedtheletter “screamed premeditation and deliberation” and wastherefore relevant and admissible at the guilt- 200 innocencephase (6 RT 1445), the prosecutorreferred to theletter twice in his closing argumentat the guilt-innocence phase, and neither time did he Thetrue effectiveness ofthe letter was in the emotional impact ofits lurid and provocative language. Thetrial court’s abuse of discretion in admitting this highly inflammatory letter with no legitimate probative value whatsoever was so prejudicial that it rendered appellant’s trial fundamentally unfair in violation of the due process clause. (U.S. Const., 5", 6", 8", & 14” Amends.; Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Partida (2005) 37 Cal.4th 428, 439.) Reversal is also required under state law: had appellant’s jury not heard the inflammatory evidencein this case, in which there was a genuine disputeas to the degree of appellant’s culpability,it is reasonably probable-that appellant would have been convicted of a-lesser offense on at least one of the murder counts. (People v. Watson (1956) 46 Cal.2d 818, 836.) Specifically, as argued above, there was a strong case that appellant should have been convicted of no more than manslaughter for his role in Apodaca’s death, andappellant then would not have been eligible for the death penalty. (See ArgumentI, supra, concerning invalidity of prior-murder special circumstance.) Finally, appellant had a constitutionally-protected liberty interest in the correct application of state evidence laws, andthetrial court’s error deprived him of the process due to him understate law, in violation of his federal due process rights. (U.S. Const., 5" & 14" Amends.; Hicksv. Oklahoma (1980) 447 U.S. 343, 346-347.) C. The Letter Was Not Admissible at the Penalty Phase At the penalty phase, the previously redacted portions ofthe letter 201 were admitted, including appellant’s statement that he did not “regret my actions in any way, shape or form”andhis threat to kill someone in custody if he did not get the death penalty in his currenttrial. (9 RT 2267-2268; Peo. Ex. 8A.) These additional portions of the letter had no probative value because they were not relevant to any statutory aggravating circumstance. They were relevant only to show lack of remorse and future dangerousness, respectively. Atthe penalty phase of a capital trial, the “prosecutor may not present evidence in aggravation that is not relevant to the statutory factors enumerated in section 190.3.” (People v. Crittenden (1994) 9 Cal.4th 83, 148, citing People v. Boyd (1985) 38 Cal.3d 762, 772-776.) Becauseit is not a statutory aggravating circumstance, lack of remorse maytherefore be considered in aggravation, as a circumstance of the crime underfactor(a) of section 190.3, only insofar it relates to the “defendant's overt remorselessness at the immediate scene ofthe crime.... On the other hand, postcrime evidence of remorselessness does not fit within any statutory sentencing factor, and thus should not be urged as aggravating.” (People v. Gonzalez(1990) 51 Cal.3d 1179, 1231-1232 [originalitalics, citing People v. Boyd, supra, 38 Cal.3d at pp. 771-776], superseded by statute on other groundsasstated in Barnett v. Superior Court (2010) 50 Cal.4th 890; accord People v. Collins (2010) 49 Cal.4th 175, 227; People v. Pollack (2005) 32 Cal.4th 1153, 1184-1185; see also United States v. Walker (N.D.N.Y. 1995) 910 F. Supp. 837, 855 [defendant’s assertion that he and co-defendant had “killed the ‘motherf* * *er’” was more prejudicial than probative and was not admissible to prove nonstatutory aggravating circumstance of lack of remorse].) Future dangerousnessis likewise not a statutory aggravating 202 circumstance, and evidence of future dangerousnessis not admissible in the prosecution’s case in chief, but may be admitted to rebut evidence offered life without possibility of parole. (People v. Malone (1988) 47 Cal.3d 1, 31, citing People v. Boyd, supra 38 Cal.3d at pp. 775-776 and Peoplev. Murtishaw (1981) 29 Cal.3d 733, pp. 767-768; accord People v. Wright (1990) 52 Cal.3d 367, 427, fn. 21, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) As amatter of Eighth Amendmentlaw, because of the death penalty’s unique severity andfinality, “[i]t is of vitalimportance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” (Gardner v. Florida (1977) 430 U.S. 349, 358; accord Godfrey v. Georgia (1980) 446 U.S. 420, 433.)”° Appellant’s assertion he had no regrets did not relate to his “overt remorselessness at the immediate scene ofthe crime.” (People v. ’*Paradoxically, this Court has approvedthe application of section 352 at the penalty phase to exclude mitigating evidence proffered by the defense. (See, e.g. People v. Virgil (2011) 51 Cal.4th 1210, 1273 [upholding exclusion of photographs proffered by the defense as cumulative]; People v. Yeoman (2003) 31 Cal.4th 93, 141 [third-party culpability evidence excluded].) Andit has consistently held thattrial judges have Jess discretion to exclude prosecution evidenceat the penalty phase where“the risk of an improper guilt finding based on visceral reactions.isno longer present,” (People v. Bonilla (2007) 41 Cal.4th 313, 353-54), and the jury’s task is merely to decide whether the defendant “‘is the type ofperson who deservesto die.” (People v. Ray (1996) 13 Cal.4th 313, 350; accord People v. Solomon (2010) 49 Cal.4th 792, 841; Peoplev. D'Arcy (2010) 48 Cal.4th 257, 298-99; People v. Jablonski (2006) 37 Cal.4th 774, 834.) Appellant submits this stands the Eighth Amendment on its head. 203 Gonzalez, supra, 51 Cal.3d at pp. 1231-1232 [original italics].) It was a characterization made 13 to 14 years later — plainly “postcrime evidence of remorselessness,” which “does not fit within any statutory sentencing factor, and thus should not be urged as aggravating.” (/bid. [original italics]; accord People v. Collins, supra, 49 Cal.4th at p. 227.) Appellant’s conditional and completely unspecific threat of what he might doifnot sentenced to death, did not constitute criminal conduct and wassimilarly inadmissible. (People v. Thomas (2011) 52 Cal.4th 336, 363 [alleged “criminal activity” must violate a penal statute]; accord People v. Boyd, supra, 38 Cal.3d at pp. 777-778.) Nevertheless, the prosecutor used the letter in both his opening and closing arguments at the penalty phase, characterizing it as the “the most important theme”in his argumentfor the death penalty. (8 RT 1890, 11 RT 2957.) He quoted specifically appellant’s challenge to the districtattorney, “in any.case, sir, ifyou don't have enough balls and guts to give me whatI -deserve by sending myass to the gas chamber, then my only other recourse is to kiH someoneelse once I return to prison in orderto finally receive the ultimate punishment even the man upstairs knowsI deserve.” (11 RT 2957.) He then_urged the jurors to sentence appellant to death, so they wouldknow “you've done-everything you can so that that last sentence doesn't happen.” (Jbid.) The prosecutor thus used the letter, which had nolegitimate probative value at the penalty phase, purely to capitalize on jurors’ fears. One of the consequencesof allowing future dangerousnessto figure in the sentencing processis that “future dangerousness invites jurors to fear responsibility for the defendant's violent future acts, and this fear has the ability to render the defendant's culpability entirely irrelevant.” (Shapiro, 204 An Overdose ofDangerousness: How “Future Dangerousness” Catches the Least Culpable Capital Defendants and Undermines the Rationalefor the Executions m.J- Crim. £. 170.) this case,— the prosecutor madethe invitation explicit, using the letter to tell the jurors that they were personally responsible for preventing future acts of violence by appellant. (11 RT 2957, 2974.) Not only was the danger of unfair prejudice, which Evidence Code section 352 is intended to prevent, fully realized, but the error in admitting appellant’s letter underminedthereliability of the sentencing process in violation of the Eighth Amendment. | Atthe penalty phase ofa capital trial, “a more exacting standard of review”is applied to “assess the prejudicial effect of state-law errors.” (People v. Brown (1988) 46 Cal.3d 432, 447.) Reversal is required if “there is a “reasonable possibility’ such an error affected a verdict.” (Jbid.) Because “the guided discretion-through whichjurors reach their penalty decision must permit eachjuror individually to assess” the sentencing factors (People-v. Bell (2007) 40 Cal.4th 582, 621), the potential impact of an error on individual jurors must be considered: “If only one of the twelve jurors was. swayed by the inadmissible evidenceorerror, then, in the absence of that evidence or error, the death-penalty would not have been imposed. What mayaffect one juror might not affect another.” (Peoplev. Hamilton (1963) 60 Cal.2d 105, 137, overruled on another point in People v. Morse (1964) 60 Cal.2d 631, 649; accord In re Lucas (2004) 33 Cal.4th 682, 734, quoting Wiggins v. Smith (2003) 539 U.S. 510, 537 [finding prejudicial error where “there is a reasonable probability that at least one juror.would havestruck a different balance” between aggravating and mitigating factors].) 205 Empirical studies have found “that concerns regarding the defendant's dangerousness may weigh heavily in jury decision making and consume a majority of the sentencing deliberation time across a variety of capital sentencing frameworks,” even when no expert testimony ig admitted and even when future dangerousnessis not a statutory aggravating circumstance. (Claussen-Schulz et al., Dangerousness, Risk Assessment, and Capital Sentencing (2004) 10 Psychol. Pub. Pol'y & L. 471, 481-482 [reviewingliterature].) “This suggests that jurors may be especially primed to give inappropriate weight to evidence concerning the defendant's dangerousness.” ([bid.) In this case, the prosecution did present evidence ofviolent acts appellant had committed while incarcerated, but these incidents were, as defense counsel noted, more than twenty years before the trial — between 1976 and 1978.” (8 RT 1945, 2099, 2114, 2193.) The prosecution introduced_no evidence of violent behavior during appellant’s 1988-1997 stintinprison. ™In 1976, in the LA county jail, appellant and two other inmates assaulted and attempted_to rob a fourth inmate, Rondelle Self. (8 RT 1945- 1971.) Appellant was convicted of attempted robbery. (8 RT 2281.) In 1978, appellant assaulted another inmate in Chino, Ruben Gaxiola- (8RT 2096-2123.) Appellant was convicted of the attempted murder of Gaxiola. (8-RT 2282.) The prosecution also presented evidence of an uncharged. incidentfrom 1977, involving another inmate in Folsom, Allen O’Hare. O’Hare was a schizophrenic with a lengthy record, including an attempted escape from the Orange County Courthouse in which he took a gun from a bailiff andtried to kill him. (8 RT 2183, 2189, 2192.) O’Hare asked for special housing in exchangefortestifying against appellant. (8 RT 2190.) O’Haretestified that appellant stabbed him in a dispute over some coffee that appellant owed O’Hare. Appellant was never charged, apparently because there was some question whostarted the fight and whether O’Hare wasalso armed. (8 RT 2184, 2201-2205.) 206 The long delay in prosecuting appellant attests to the fact that the murder of Max Facundo was not one of the most aggravated and least mitigatedhomicides, calling penalty.ve Simmons (2005) 543 U.S. 551, 568 [“Because the death penalty is the most severe punishment. . . [it] must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution,’quoting Atkinsv. Virginia (2002), 536 U.S. 304, 319.) Indeed, the state was apparently content, until appellant confessed again to the crime, not even to prosecute it.7® | Absent appeliant’s letter, calculated to appeal to jurors’ fears by threatening violence in the future, there is at least a reasonable possibility that one or more jurors would likely have struck a different balance between ageravatingand mitigating circumstances and-voted for life without possibility of parole. The error here was, moreover, not merely-one of state law. Rather, its effect was to underminethereliability of the sentencing process as a whole; in violation ofthe Eighth Amendment, for “[iJt is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason-rather than caprice or emotion.” (Beck v. Alabama (1980) 447 U.S. 625, 637-38, quoting Gardnerv. Florida (1977) 430 U.S. 349, 357-358 (opn. of White, J). ®The police acknowledgedthat appellant had phonedthe night of Facundo’s stabbing and confessedto it, telling the police to let Charlene and Raymond Guzman go. Appellant wasarrested but not prosecuted for the murder. (6 RT 1392, 1396.) 207 This Court has recognized the state’s responsibility to ensure the constitutional reliability of the capital sentencing process, even when the defendant, as here, wishes to be sentenced to death. (People v. Alfaro (2007) 41 Cal.4th 1277, 1299 [trial counsel properly withheld consentto guilty plea in capital case]; People v. Chadd (1981) 28 Cal.3d 739, 753-755 [defendant may not discharge counsel and represent himself to avoid effect of section 1018 prohibiting guilty plea in capital case without consent of counsel where defendant “simply wants state to help him commit suicide”; People v. Stanworth (1969) 71 Cal.2d 820, 833-834 [defendantin capital case may not waive automatic appeal pursuant to section 1239, because “the state, too, has an indisputable interest in (the appeal) which the appellant cannot extinguish”].) In People v. Guzman (1988) 45 Cal.3d 915 (Guzman), overruled on other groundsin Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, this Court acknowledged that while a capital defendant has-a fundamental right to testify, the state also “has-a strong interest in promoting the reliability of a capital jury's sentencing determination.”” (Jd. at p. 962, citing People v-Deere (1985) 41 Cal.3d 353, 362-364 and People v. Burgener (1986) 41 Cal.3d 505, 541-542.) The court found that allowing the defendant to express his preference for death did notin that case underminethe reliability of the sentencing where the prosecutor “did not mention defendant's death-preference testimony in his closing argument” and the jury understoodits duty independently to weigh ”As discussed further below,appellanthere, unlike in Guzman,is not challenging the admissibility of his own testimony, which wasneither as inflammatory nor as heavily emphasized by the prosecution as the Garcetti letter. 208 mitigating cirumstances. (/bid.) In this case, in contrast to Guzman, the prosecutor not only demanding the death penalty, characterizing it as “the most important theme”in his penalty phase argument. (People v. Guzman, supra, 45 Cal.3d at p. 963; 11 RT 2957.) Moreover, as discussed further below, there wasno limiting instruction given, advising the jurors oftheir obligation, notwithstanding the-defendant’s desire for a death sentence,“to decide for itself, based on the statutory factors, whether death is appropriate.” (See People v. Guzman, supra, 45 Cal:3d at p. 962 [suggesting that such an instruction-would be appropriate to balance “the conflicting public and constitutional policies” concerning a defendant’s right to testify and the state’s interest in a reliable sentencing determination]; People v. Webb (1993) 6 Cal.4th 494, 535 [finding no error in allowing defendantto testify regarding appropriateness of death penalty, including purported admission ofother murders for whichhe had not-been caught, where Guzman instruction was given].) Consequently, because the erroneous-admission ofthe letter underminedthereliability of the sentencing process, appeiiant’s death sentence must be reversed. (Johnson v. Mississippi (1981) 486 U.S. 578, 584, 589 [death sentence reversed wherereliability of death sentence underminedbyjury’s consideration of inaccurate and prejudicial aggravating evidence].) / // // 209 XI. THE TRIAL COURT HAD A SUA SPONTE DUTY TO INSTRUCT THE JURY ON ITS RESPONSIBILITY INDEPENDENTLY TO DECIDE THE APPROPRIATENESS OF THE PENALTY DESPITE APPELLANT’S STATED DESIRE FOR A DEATH SENTENCE Asargued above,the trial court could, and should, have excluded appellant’s letter at both the guilt-innocence andpenalty phasesofthe trial as more prejudicial than probative, but if this Court finds it was nat error to admit the letter at the penalty phase, then at the very least, the trial court should have given a cautionary instruction such as this Court proposed in People v. Guzman (1988) 45 Cal.3d 915, 962 (Guzman), overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, to mitigate the impactofthe letter on the jury’s sense of its sentencing responsibility and ensurethereliability of their sentencing determination. This Court has “‘stress[ed] that the federal Constitution, the 1978 death penalty law, and the CALJIC instructions must be understood as requiring that the jury determine for itself whether, based on the statutoryfactors, death is appropriate in a given case.” (/d. at 961-62.) The Guzman Court reasonedthat a “constitutionally permissible way| ]” of balancing “the conflicting public and constitutional policies” between a defendant’s rightto testify and express his preference for the death penalty and the state’s interest in a reliable sentencing determination, would be for the trial court to “give the jury a specially crafted ‘limiting instruction,” after evidence of a defendant’s death preference has been introduced, informing the jury that, despite the defendant's wishes,“it remains obligated to decide for itself, based on the statutory factors, 210 whether death is appropriate.” (People v. Guzman, supra, 45 Cal.3dat p. 962.) a———courtcase,was no duty to give a sua sponte instruction because the prosecutor did not mention the defendant's preference for the death penalty in his closing argument and the jury was otherwise adequately instructed on “its duty to exercise discretion to determine the appropriate sentence.” (Peoplev. Guzman, supra, 45 Cal.3d at p. 962; see also People v. Webb (1993) 6 Cal.4th 494, 535 (Webb) [no error in allowing defendantto testify regarding appropriateness of death penalty, including purported admission of other murders for which he had not been caught, where Guzman instruction was given].) In this case, thetrial court did have a duty to give a sua sponte instruction for at least two reasons. First, Guzman and Webb, both ofwhich were decided well before-appellant’s trial, put trial courts on notice that a sua sponte instruction would be appropriate in a case in which evidence of a defendant’s desire for the death penalty is presented to the sentencing jury. Guzman’s holding is consistent with the well-established principle that “the trial judge ‘has the responsibility for safeguarding both the rights of the accused andthe interest of the public in the administration of criminal justice. The adversary nature of the proceedings doesnotrelieve the trial judge of the obligation of raising on his or herinitiative,at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination ofthe trial.’” (People v. McKenzie (1983) 34 Cal.3d 616, 627, abrogated on other groundsin People v. Crayton (2002) 28 Cal.4th 346, 364, quoting ABA Standards for Criminal Justice - Special Functions of the Trial Judge, std. 6-1.1; accord 211 People v. Ponce (1996) 44 Cal.App. 4th 1380, 1387.) Asthis Court properly recognized in Guzman, whena capital defendant actively seeks the death penalty, a special instruction may be necessary to “remedy any potential diminution of ‘juror responsibility.’” (People v. Guzman, supra, 45 Cal.3d at p. 962.) This is precisely the sort of circumstance that raises “essential questions of law” on which“i]t is the duty of thetrial judge to charge the jury .. . whether requested or not.” (Kelly v. South Carolina (2002) 534 U.S. 246 256, quoting Wright, Federal Practice & Procedure (3d ed. 2000) § 485, p. 375; accord People v. Young (2005)34 Cal.4th 1149, 1200; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Sedeno (1974) 10. Cal.3d 703, 716; People v. St. Martin (1970) 1 Cal.3d 524, 531.) The need for a special instruction wasclearer here than in Guzman becausethe letter expressing-appeliant’s desire for the death penalty was introduced not by the defense but by the prosecution, which then made the -letter the central theme of its argumentfor the death penalty. In Webb, the defendant, like appellant, apparently sought to “inflame”the jury by not only requesting the death penalty but making the case for it by admitting to other crimes. (People v. Webb, supra, 6 Cal.4th at pp. 513, 535.) Noting that “a defendant's absolute rightto testify cannot be foreclosed or censored based on content,” this Court held that “any potentially improper effectis to be alleviated with a limiting instruction where ‘appropriate.’” (Ud. at p. 535.) Thetrial court in Webb had given such an instruction, as requested by the defense, and this Court therefore found no error. (/bid.) This case is indistinguishable from Webd, in which this Court found the special instruction to have been properly given, except for the fact that the trial court here could have excluded the Garcetti letter. 212 Having decided to admit the letter, however, it was the trial court’s duty to ensure that the jury did not take its sentencing responsibilities less seriously Because the jury’s “sense of responsibility for determining the appropriateness of” a death sentence was undermined,in violation of the Eighth Amendment, by the admission of the Garcetti letter and not corrected by an instruction, as this court suggested in Guzman, appellant’s death sentence must be reversed. (Caldwell v. Mississippi (1985) 472 US. 320, 341.) Reversal is also required as a matterof state law because there-is a reasonable possibility that the verdict would have been more favorable to appellant if the instruction had been given. (People v. Brown (1988) 46 Cal.3d 432, 447-448.) // // HI 213 XII. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTION TO IMPEACH APPELLANT WITH A CONSTITUTIONALLY INVALID 30-YEAR-OLD SECOND DEGREE MURDER CONVICTION. Asset forth in ArgumentI, supra, incorporated by reference herein, appellant’s 1971 conviction for second degree murder, which established the prior-murder special circumstance, was constitutionally invalid as it was obtained in violation of double jeopardy. This conviction was not only used to establish the prior-murder special circumstance, it was also used to impeach appellant when hetestified at the guilt-innocence phaseof thetrial. (7 RT 1705.) The use of an invalid 30-year-old prior murder conviction as impeachment,in trial for two homicides in which the degree of appellant’s culpability was hotly disputed, violated appellant’s rights under both California law and the due processclause of the Fourteenth Amendment and requires reversal. Moreover, even if the 1971 conviction wasnotinvalid, the trial court abused its-discretion in allowing the conviction to be used whenit had no genuine probativevalue as impeachmentevidence and served only to improperly persuade the jury of appellant’s propensity to commit murder. A. Relevant Facts The facts and law establishingthe invalidity of the second degree murder conviction are set out in ArgumentI, supra. In addition, when appellant insisted on testifying, defense counsel argued vigorously that use of appellant’s 1971-second degree murder conviction for impeachment should be barred by Evidence Code section 352, because the conviction was extremely remote: the underlying crime occurred more than 30 years earlier, 214 appellant was barely 16 years old at the time, a murder conviction is not as probative of a witness’ credibility as other offenses that specifically involve recent felony convictions. (6 RT 1505-1515, 7 RT 1578-1582.) Moreover, in the circumstancesofthis case, where appellant was seeking the death penalty, the danger was not, counsel argued, that appellant would provide false exculpatory testimony, but that he would be “more than honest” and exaggerate his culpability, as he did in his confession andhisletter to District Attorney Garcetti. (6 RT 1507.) Consequently, the prior conviction had no genuine probative value as impeachment. On the other hand, introducing the old murder conviction posed an extremely high risk of unfair prejudice where appellant was ontrial for two other murders. (6 RT 1505-1515, 7 RT 1578-1582.) Indeed,trial counsel argued that the prior murder conviction wasso prejudicial that if it came in, the defense “might as well packit in.”8° (6 RT 1508.) Thetrial court-meverthelessdenied the request to-preclude use of appellant’s prior murder conviction as impeachment. (7 RT1582.) *°Trial counsel did not rely upon the invalidity of the prior conviction” on double jeopardy groundsas a reason to excludeits use as impeachment. Asset forth in Argument J, supra, however, the interests ofjudicial economyfavorresolving issues of the constitutional validity of a prior conviction at the earliest opportunity. (People v. Horton (1996) 11-Cal.4th 1068, 1138-1139.) Thus, if this Court finds the conviction invalid, its use as impeachment evidence should also be addressed in this direct appeal. 215 B. The Improper Use of Appellant’s Invalid Second Degree Murder Conviction as Impeachment Requires Reversal of the Convictions This Court has madeclear that “the use of a constitutionally invalid prior conviction” to impeacha testifying defendantis an error not only of California law but of federal constitutional law as well. (People v. Coffey (1967) 67 Cal.2d 204, 218 (Coffey), citing People v. Hamilton (1948) 33 Cal.2d 45, 50; Macfarlane v. Dept. Alcoholic Bev. Control (1958) 51 Cal.2d 84, 89; People v. Banks (1959) 53 Cal.2d 370, 382,fn. 1) The use of a constitutionally invalid conviction “at the trial of a subsequent offense, for any purpose leading to a conviction for such subsequentoffense, is violative of the due process clause of the Fourteenth Amendment.” (People v. Coffey, supra, 67 Cal.2d at p. 218.) Accordingly, such an error requires reversal of the subsequent conviction unless the state can establish that it was harmless beyond a reasonable doubt. (/bid., citing Chapmanv. California (1967) 386 U.S.18.) In Coffey,the prior conviction was obtainedin apparent violation of the defendant’s right to counsel — he pled guilty to a felony in Oklahomain 1949: he wasindigent but had not been appointed counsel and had not waived his right to counsel. (People v. Coffey, supra, 67 Cal.2d at p. 210:) Thetrial court erroneously refused to hear Coffey’s motion to strike the prior and allowedit to-be used to impeach him when hetestified. Ud. at p. 211.) Coffey, who was charged with assault to commit murder on four police officers and assault with a deadly weapon,testified that he had not intended to harm any police officer but was trying to drive them off his property because they did not have a warrant. (People v. Coffey, supra, 67 Cal.2d at p. 220.) This Court found the prosecution had failed to prove 216 beyond a reasonable doubt that the erroneous use of Coffey’s prior to impeach him “‘did not contribute to the verdict obtained’” with respectto error harmlessas to the assault with a deadly weapon charges. (/d. at pp. 222-223.) For the reasonsset forth in ArgumentI, supra, appellant’s second degree murderconviction wasconstitutionally invalid. The questionis therefore whether the state can establish beyond a reasonable doubt that the imtroduction of appellant’s invalid prior murder conviction as impeachment ~ evidenceat theguilt-innocence phaseofthetrial did not contribute to the verdicts against him. (Chapman v. California, supra, 386 U.S.at p. 24.) It is well documentedthat using a prior conviction that is for the same offense for which the defendantis ontrial is especially prejudicial: “In this situation, despite any limiting instructions there is an obvious danger of misuse of the evidence,” particularly that the jurors will“give more weight to the past convictions as evidence that the accused-is the kind ofman who would commit the crime charged or even that he ought to be imprisoned without much concern for present guilt, than they-will to the-convictions’ legitimate. bearing on credibility.” (1 McCormick,Evidence (6ed. 2006) § 42, p. 198 & fn. 67 [citing empirical studies documenting the misuse of prior cenviction evidence]; accord United States v..Sanders (4th Cir. 1992) 964 F.2d 295, 298 [Because evidence of a similar offense doeslittle to impeachthe credibility of a testifying defendant while “undoubtedly prejudicing him,” despite limiting instructions, such evidence “should be admitted sparingly if at all” under Federal Rule of Evidence 609].) This Court has also recognizedthe prejudicial effect of impeaching a defendant with a prior conviction for an offense similar to the one for which 217 he is on trial. (People v. Gurule (2002) 28 Cal.4th 557, 608 [trial court abusedits discretion in allowing prior conviction to be used as impeachment whereit was for crime very similar to that for which defendant wasontrial, applying pre-Proposition 8*' factors set out in People v. Beagle (1972) 6 Cal.3d 441, 454.]) The similarity of the offense to be used for impeachmentto that for which the defendantis ontrial remains a relevant factor weighing against admissibility under Evidence Code section 352. (See People v. Wheeler (1992) 4 Cal.4th 284, 296 [when exercising discretion under Evidence Code section 352,trial court “must always takeinto accountfactorstraditionally deemed pertinent,”citing People v. Beagle, supra, 6 Cal.3d at p. 454].)” In this case, the effect of the prior murder conviction could only be devastating. As discussed above, appellant’s state of mind and degree of culpability were disputed with respect to both the Apodaca and Facundo murders. Appellant was convicted only of the second degree murder of ®!Proposition 8, the so-called “Victim's Bill of Rights,” was passed in- an initiative measure in June 1982 andis codified in.article I, section 28-of the California Constitution. (People v. Smith (1983) 34 Cal.3d 251, 257.) Article I, section 28, subdivision (f)(4), provides: “[a]ny prior felony conviction of any person in any criminal proceeding, whether-adult-or juvenile, shall subsequently be used without limitation for purposes of impeachment....” (Cal. Const:, art. I, § 28, subd. (f)(4).) Prior convictions are still subject to exclusion under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 312-313.) ®°Because appellant’s prior conviction was invalid, it was not admissible even as to credibility, so that CALJIC No. 2.23 stating that a witness’ prior conviction may be considered “only for the purpose of determining the believability of that witness” (7 RT 1747; 5 CT 1 I 17), could cure the error. For the reasons explained above, moreover, such limiting instructions are ineffective. 218 Apodaca, demonstrating that the jury did not entirely accept the state’s theory of the crime. There was real doubt whether appellant had in fact to enhance his chances of securing a death sentence. As to Facundo,it was undisputed that appellant had acted in response to Facundo’s repeated beatings of appellant’s cousin Charlene Trujeque. Becausethetrial court refused appellant’s requested instruction on the unreasonable defense of others, the jury was not given the option of convicting appellant of manslaughter but could well have returned a verdict of second degree murder if not for the prejudicial impact of learning appellant had a prior conviction for murder. Asthe above authorities recognize, that conviction could only cause the jury to conclude that appellant had a propensity to commit murder and therefore resolve against him any doubts it had concerninghis culpability. In these circumstances, the use of appellant’s constitutionally invalid, 30- year-old second degree murder conviction cannot be found harmless beyond a reasonable doubt. C. It Is Not Clear from this Record That Appellant’s Juvenile Misconduct Would Have Been Independently Admissible In this case, the error cannot be found harmless on the groundthat appellant could have been impeached with the prior murder, regardless of conviction, as misconduct showing dishonesty or moral turpitude. The admissibility of the underlying juvenile misconduct was not addressed in the trial court, and the record suggests appellant’s case may fall within a category ofjuvenile misconduct that is not admissible for impeachment. Before the passage of Proposition 8, juvenile adjudications could not be used for impeachmentbecausethey are not criminal proceedings and do - 219 not result in criminal convictions. (Welf. & Inst. Code, § 203; In re Ricky B. (1978) 82 Cal.App.3d 106, 114, fn. 2.) With the passage of Proposition 8, article I, section 28, subdivision (f)(4) of the California Constitution, now providesthat: “[a]ny prior felony conviction of any person in any criminal proceeding, whether adult orjuvenile, shall subsequently be used without limitation for purposes of impeachment...” (Cal. Const., art. I, § 28, subd. (f)(4) [italics added].) This Court has construedarticle I, section 28, subdivision (d), of the California Constitution, also enacted by Proposition 8, to remove “most restrictions on the admission of relevant credibility evidence in criminalcases, including the rule that felony convictionsare the only form of conduct admissible for impeachment.” (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296.) The court held that any misconduct involving moral turpitude was admissible as impeachment, subject to the limitations of Evidence Codesection 352. ([bid.) This reasoning has been extendedto allow the prosecution to “introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication.” (People v. Lee (1994) 28 Cal.App.4th 1724; 1740.) There is an exception, however, where the defendant received an honorable discharge from the California Youth Authority under Welfare and Institutions Code section 1772. (Ibid.) Welfare and Institutions Code section 1772 provides, in pertinent part, that “[e]very person honorably discharged from control by the YouthfulOffender Parole Board who hasnot, during the period of control by the authority been placed by the authority in state prison shall thereafter be released from penalties and disabilities resulting from the offense or crime for which he or she was committed...” (Welf. & Inst. Code, § 1772.) In People v. Jackson (1986) 177 Cal.App.3d 708, 711 (Jackson), the court 220 of Appeal held that Welfare and Institutions Code section 1772 “manifests a strong public policy that those persons honorably discharged from the 399‘penalties and disabilities’” of their past misconduct, including “impeachment by former offenses.” (/d. at p. 713.) The court concluded, the “use of a prior conviction extinguished by [Welfare and Institutions Code] section 1772 is unduly prejudicial and accordingly subject to exclusion in a subsequent criminal proceedingin the exercise ofthetrial court's discretion.” ([bid.) In this case, defense counsel noted in another contextthat appellant had a “certificate ofpardon” from the California Youth Authority. (4 CT 788.) This documentis not in the record, but defense counsel’s remark raises the question whether appellant’sdischarge from the Youth Authority comes within Welfare and Institutions Code section 1772. Because appellant’s second degree murder conviction wastreated as a valid, adult conviction for impeachment purposes, the circumstances of appellant’s discharge from the Youth Authority and the possible applicability of section 1772 were not addressedin thetrial court. A finding of harmless error therefore cannot be predicated on the assumption that the underlying juvenile misconduct would have been admissible as impeachment, because that issue was not resolved below. Since the use. of appellant’s invalid prior conviction as impeachment cannot, on this record, be found harmless beyond a reasonable doubt under Chapman vy. California and People v. Coffey, supra, appellant’s conviction must be reversed. 221 D. Even If the Prior Conviction Were Found to Be Valid, it Should Have Been Excluded underSection 352 Finally, even if there is no other bar to admissibility, appellant’s 1971 second degree murder conviction and the underlying misconduct should have been excluded under Evidence Code section 352. (See People v. Castro (1985) 38 Cal.3d 301, 317 [emphasizing admissibility of prior convictions still subject to Evidence Code section 352]; People v. Wheeler, supra, 4 Cal4th at p. 296 [in deciding admissibility under Evidence Code section 352, “a court must always take into account, as applicable, those factors traditionally deemed pertinentin this area”].) First, the conviction was extremely remote: the underlying murder was committed in February 1969, more than 30 years-before appellant _ testified at trial. (See People v. Burns (1987) 189 Cal.App.3d 734, 737-738 [remotenessis still a relevant factor in deciding admissibility under section 352, and while thereis no rigid cut-off, “ a conviction that is 20 years old... -certainly meets any reasonable-threshold test of remoteness”].) Second, “convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or someotherlack of integrity.” (People v. Castro, supra, 38 Cal.3d at p. 315, quoting People v. Rist (1976) 16 Cal.3d 211, 222.) Third, the conviction had absolutely no genuine probative value as impeachment since appellant, who was seeking the death penalty (7 RT 1601), did not previde exculpatory testimony. Rather, as he had in his statementto police andhisletter to District Attorney Garcetti, appellant acknowledged guilt of both murders. (7 RT 1590, 1595, 1600, 1605, 1622- 1623, 1644-1645, 1653, 1660.) Against the complete absence ofprobative value for impeachment 222 purposes, there was, as discussed above, an exceedingly high risk of unfair prejudice given that appellant wasontrial for two murders. The danger that ——a jury will notwithstandinglim tinginstructions misuse such evidence as substantive evidenceof guilt has been empirically demonstrated. (See McCormick on Evidence, supra, § 42, p. 198 fn. 67; see also Dodson, What Went Wrong with Federal Rule ofEvidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence (1999).48 Drake L. Rev. 1, 31 [Numerousstudies conducted overthe last forty years show [that] . . . jurors do use prior conviction evidence to infer criminal propensity and frequently ignoreorfail to understand limiting instructions”’].) Thus, even if the 1971 murder conviction had been constitutionally valid, the trial court abusedits discretion in allowing the conviction to be used as impeachment.” The fact that appellant sought-to inculpate-himself did not renderthe use of his prior conviction harmless. To the-contrary, defense counsel urged the jury to discount appellant’sinculpatory statements, becauseofhis desirefor a death sentence, and to focus on the other evidencein the case. Courts have repeatedly refused to allow defendants to impeach witnesses with such evidence. (See People v. Abilez (2007) 41 Cal.4th 472, 503 [upholdingtrial court’s decision in murder and forcible sodomy case to prevent defendant from impeaching co-defendant with 20-year-old juvenile adjudication for attempted sexual intercourse with a minor];People v. Clair (1992) 2 Cal.4th 629, 654 [upholdingtrial court's decision to prevent defense from impeaching prosecution witness with a 22-year-old conviction for manslaughter]; People v. Pitts (1990) 223 Cal.App.3d 1547, 1555 [upholdingtrial court’s decision preventing defendant from impeaching prosecution witness with 11- year-old murder, committed when witness was 15 or 16 years old].) 223 (7 RT 1811-1812, 1819, 1821-1826, 1829.) As discussed above, this evidence raised genuine questions about appellant’s culpability and state of mind with respect to both murders. Onthis record, it is apparent that the benefit to the prosecution of admitting the second degree murder conviction was not to impeach appellant’s credibility but rather to establish his propensity to commit murder so that the jury would resolve its doubts about appellant’s state of mind and culpability against the defense. It is not only reasonably probable that a result more favorable to appellant would have occurred if not for the erroneous admission of his 1971 second degree murder conviction (People v. Watson (1956) 46 Cal.2d 818, 836), but the prejudice was so substantial that it rendered appellant’s trial fundamentally unfair in violation of the due process clauses of the Fifth and Fourteenth Amendments.” (Estelle v. McGuire (1991) 502 U.S. 62, 72-73.) // // // “The prosecutor characterized the question for thetrial court as whether the conviction was so profoundly prejudicial that to allow its use as impeachment would deny appellant a fair trial. (6 RT 1505-1506.) 224 ARGUMENT XHI PAGES 225 THROUGH 250 FILED UNDER SEAL 225 XIV. THE TRIAL COURT’S REFUSAL TO CONDUCT AN ADEQUATE HEARING TO RESOLVE DISPUTED ISSUES OF FACT CONCERNING JUROR MISCONDUCT VIOLATED APPELLANT’S RIGHT TO AN IMPARTIAL JURY AND TO A_ RELIABLE SENTENCING DETERMINATION The jurors’ attempt, on the eve of their penalty deliberations, to share with the prosecutor a cartoon depicting an overzealous cross-examination raised serious issues concerning possible juror bias anda failure to take the penalty proceedings with the constitutionally-required degree of seriousness. Despite these concerns,the trial court failed to conduct an adequate inquiry intothe alleged misconduct, even whenthe bailiff and a juror gave conflicting accounts of their conversation concerning the cartoon and the juror’s answers indicated she had discussed the cartoon with other jurors. The failure to conduct a hearing to resolve material, disputed facts regarding the juror misconduct wasan abuseofdiscretion- and violated appellant’s rights to a fair and impartial jury and to a reliable sentencing determination. (U.S. Const. 6", 8" &-14 Amends.; Cal.Const., Art.I § 16.) A. Proceedings Below On Tuesday, September 21, 1999, after the jury had receivedits penalty phase instructions, the attorneys alerted the judge that Juror No. 12 had given a cartoon cut from the Los Angeles Timesto thebailiff and asked him to show it to the prosecutor. (11 RT 2940.) The court described the cartoon for the record: “[It] appears to depict a courtroom,the judgesitting behind the bench, counsel seated at counsel table and what appears to be a female with a hockeystick pinning another person against the wall next to the witness stand. And the cartoonreads, 251 ‘objection sustained. Counsel will refrain from body-checking the witness and slamming him against the doors.’” (11 RT 2939; 4 CT Supp. V 999; 1 the jury received their penalty phase instructions, andthe first court day after the defense hadfinished presenting its case in mitigation. (5 CT 1083- 1084 [Minute Order for September 21, 1999]; 5 CT 1068-1069 [Minute Order for September 17, 1999].) When questioned by the court, the bailiff (Rick Allen) explained how he gotthe cartoon: The Bailiff: I don't remember what juror numbersheis. I believe it was juror number-- Mr. Markus: J think it's 12. The Bailiff: -- 12 came up to me and handed me the cartoon and jet me readit, and I did, and then she asked meto handit to the-D.A. and I let him read it. And then I broughtit back to you to read, and then I showedit to the public defender-- J mean, excuse me -- to Andy Stein to read-also. (11 RT 2940.) Defense counsel askedthat thejuror be removed for misconduct, for making an improper attempt to communicate with the-prosecutor and” showing bias toward the prosecution and also asked the court to question the other jurors. (11 RT 2940-2941, 2943-2944.) Defense counsel Holtz said she had observed Juror No. 12 waiting and trying to make eye contact 8A copy of the cartoon was appendedas Exhibit B to Appellant’s Request to Complete, Correct, and Settle the Record on Appeal. (4 CT Supp.V 999.) Appellant’s request to augment the record on appeal with the copy of the cartoon, contained in Exhibit B to the motion, was granted. (1 CT Supp.VI 46.) 252 with the prosecutor to see his reaction to the cartoon. (11 RT 2941.) The prosecutor disagreed that there had been any misconduct, maintaining that the juror stood by the door smiling, looked at both the bailiff and the prosecutor, then left the court room after he (the prosecutor) gave the cartoon to Ms. Holtz. (11 RT 2942.) The court questioned the juror, who denied that she had asked the bailiff to show the cartoon to any of the attorneys: The Court: My bailiff indicated to me that you handedthis cartoon to him. Prospective Juror 12: Yes. The Court: Okay. And you asked him to showthis cartoon to Mr. Markus. Prospective juror 12: He asked if he could haveit. I just said we wanted to giveit to him, yeah. Rick [the bailiff]. . The Court: Okay. The bailiff asked you if he could have it? Prospective Juror 12: Yes. The Court: Was it your intention to specifically givethis cartoon to the prosecutor? Prospective Juror 12: It was just in the paper. We just wanted to give it to Rick. It was nobody's -- no, it wasn't. The Court: It wasn't meant for any of the attorneys. Juror No. 12: No, no, no, no. We just thought it was funny. No. It wasn't like give it to him for him. No. The Court: Okay. All right. You simply wanted to give it to Rick? 253 Juror No 12: To Rick, yeah. The Court: All right. Because you thought it was humorous. Juror No. 12: Yeah. The Court: Okay. That's all. Juror No. 12: Oh, okay. The Court: Thank you. (11 RT 2944-2945.) The juror’s account contradicted the bailiffs because she denied asking the bailiff to show the cartoon to the prosecutor; the juror also referred several times to “we,” suggesting that she had discussed the cartoon with the other jurors. Defense counsel therefore asked the court to conducta further inquiry, questioning the bailiff and the other jurors under oath, to resolve the conflict. (11 RT 2946-2947.) Despite the discrepancy between the juror’s version of events and the bailiffs, the court refused to make any further inquiry ofthe bailiff or of the other jurors and denied defense-counsel’s request to excuse Juror No. 12. (11 RT 2946-49.) The court said it was “accept[ing] the representation by her [Juror No. 12] that she intended this cartoon for the bailiff and no oneelse, and... the bailiff wantedto share it with someoneelse.” (11 RT 2948.) B. TheTrial Court Abusedits Discretion by Refusing to Conduct a Further Inquiry to Resolve Disputed Issues of Fact The rightto a fair trial by an impartial jury is amonga criminal defendant’s mostfundamental rights guaranteed underthe federal and state constitutions. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Duncan v. Louisiana (1968) 391 U.S. 145, 149; Turner v. Louisiana (1965) 379 U.S. 466, 471-472; People v. Wheeler (1978) 22 Cal.3d 258, 265-266, 254 overruled in part on other grounds in Johnson v. California (2005) 545 US. 162; People v. Galloway (1927) 202 Cal. 81, 92; People v. Diaz (1984) 152 Cal.App.3d 926, 933.) Jury impartiality at sentencing also implicates due process andtheright to a fair and reliable capital penalty determination. (U.S. Const., 8th & 14th Amends.) Moreover, the Supreme Court has stressed that “[fJrom beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendantshall be put to death must be conducted with dignity and respect.” (Wellons v. Hall(2010)_——SsUS._, 130 S.Ct. 727, 728 (Wellons).) Jurors’ failure to conduct themselves with appropriate seriousness during the penalty phase “raise[s] a serious question about the fairness of a capital trial.” (Ud. at p. 731.) Section 1089 provides for the discharge of a sitting juror upon “good cause shown.” (People v. Lomax (2010) 49 Cal.4th 530, 588-589; People v. Keenan (1988) 46 Cal.3d 478, 532.) “Once a trial court is put-on notice that goodcause to discharge a juror mayexist, it is the court's duty ‘to make whatever inquiry is reasonably necessary’ to determine whether the juror should be discharged.” (People v. Cowan (2010) 50 Cal.4th 401, 505-06, citing People v. Martinez (2010) 47 Cal.4th 911, 941-942; People v. Hedgecock (1990) 51 Cal.3d 395, 417: People v. Burgener (1986) 41 Cal.3d505, 520.) While a defendantis not entitled to an evidentiary hearing in every case of alleged juror misconduct, an evidentiary hearing should be held when “necessary to resolve material, disputed issues of fact.” (People v. Hedgecock, supra, 51 Cal.3d at p. 415; accord People v. Dykes (2009) 46 Cal.4th 731, 809; People v. Avila (2006) 38 Cal.4th 491, 604; People v. Tuggles (2009) 179 Cal.App.4th 339, 379-380; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1465.) The failure to conduct a hearing may be “an 255 abuse of discretion subject to appellate review.” (People v. Burgener, supra, 41 Cal.3d at p. 520, citing People v. Huff(1967) 255 Cal.App.2d Juror contact or attempted contact with attorneys, parties, or witnesses constitutes misconduct, even when not case-related, whenit engendersor reflects bias on the part of the jurors. (People v. Ryner - (1985)164 Cal.App.3d 1075, 1082 [juror’s conversation with officer- witness improperbut not prejudicial]; People v. Hardy (1992) 2 Cal.4th 86, 175 [juror’s unauthorized contact with witness-detective was improperbut did not require hearing where misconduct was “de minimis” and there were no disputed questions of fact to resolve].) In this case, there was a material, disputed issue of fact in that the juror and the bailiff gave inconsistent accounts of the cartoon incident. (See People v. Hedgecock, supra, 51 Cal.3d at p. 415 [trial court should have | conducted evidentiary-hearing where bailiffs and jurors’ affidavits were factually inconsistent concerning misconductbybailiff during deliberations].) The bailiffs versien of events suggested an effort by the juror to communicate with the prosecutor, by sharing a joke aboutthe conductof thetrial, on the eve of the jury’s penalty deliberations. (11 RT 2940.) The juror, on the other hand, denied-asking the bailiff to show the cartoon to the prosecutor but did suggest she had discussed.the cartoon with the other jurors who had all wantedto passit on to the bailiff for his amusement. (11 RT 2944-2945.) If true, jurors sharing a joke with the prosecutor, as they began their deliberations to decide if appellant should be sentenced to death, is serious misconductthat is both indicative of bias against the defense andreflects a failure to appreciate the gravity of the jury’s duties when deciding whether 256 a defendant should be sentenced to death. (See Wellons v. Hall, supra, 130 S.Ct. at p. 728.) In Wellons, a group ofjurors in a capital case involving a rape and murder, “either during or immediately following the penalty phase,” gave the judge andbailiff suggestively-shaped chocolates as a gag gift. (Wellons v. Hall, supra, 130 S.Ct. at p. 729.) The Supreme Court foundthat these gifts and the failure to disclose them “raise[d] a serious question about the fairness of a capital trial.” (Ud. at p. 731.) While the federal appeals court had rejected the petitioner’s claims of bias and misconductas resting on “speculation” and “surmise” concerning the meaning ofthe gifts, this was not the petitioner’s fault. (/d. at p. 730.) If he had been granted the discovery and evidentiary hearing he had repeatedly requested, the Court reasoned, ““Wellons may have been able to present more than ‘speculation’ and ‘surmise.’” (/bid.) The Supreme Court therefore remanded the case to the federal appellate court to reconsider whether the petitioner wasentitled to-an evidentiary hearing-in federal court to discoverthe circumstances surrounding the gaggifts. In this-case, as in Wellons, the juror’s conduct raised questions of possible bias and reflected afailure to-treat the decision whether appellant should be sentenced to death with appropriate gravity. And, as-in_Wellons, the defense was unable to resolve disputed questions of fact or get to the- bottom of the jurors’ misconduct because the court failed to conduct an adequate inquiry despite an overt conflict betweenthe bailiffs and the juror’s account of the matter. (11 RT 2946-2947.) Thetrial court should have questioned the other jurors to “ascertain the relevant facts,” including whether they had discussed the cartoon with Juror No. 12, whether they sought specifically to share it with the prosecutor and, if so, why. (People 257 v. Hedgecock, supra, 51 Cal.3d at p. 415.) Ifnecessary, the trial court should also have questionedthe bailiff under oath. The failure to conduct a remandedfor a hearing. (People v. Hedgecock, supra, 51 Cal.3dat p. 420; People v. Burgener, supra, 41 Cal.3d at p. 520.) // // / 258 XV. THE PENALTY PHASE INSTRUCTION ON MORAL JUSTIFICATION IMPOSED A HIGHER STANDARD TO ESTABLISH THE MITIGATING CIRCUMSTANCE THAN IS REQUIRED FOR THE GUILT PHASE DEFENSE OF IMPERFECT DEFENSE OF ANOTHER AND THEREFORE PREVENTED THE JURY FROM CONSIDERING RELEVANT MITIGATING EVIDENCEIN THIS CASE, IN VIOLATION OF THE EIGHTH AMENDMENT | Appellant’s defense to the Facundo stabbing wasthat he acted in imperfect defense of another, to protect his cousin Charlene from the violently abusive Facundo. Even if this Court rejects appellant’s argument that the trial judge erroneously refusedto instruct the jury on this defense at the guilt-innocence phaseofthetrial, the jury should have been allowed to consider Facundo’s abusive conduct and the fears of Charlene’s. family as a mitigating circumstance at the penalty phase ofthe trial. Over defense objection, however, the jury was given the-unmodified version ofCALJIC No.8.85, which directs the jury to consider whether appellant acted with a reasonable belief that-his conduct was morallyjustified, thereby precluding the jury from giving effect to mitigatingevidence of appellant’s unreasonable belief that killing Facundo wasnecessary to protect Charlene, in violation of the EighthAmendment.* This Court has acknowledgedthat federal constitutional error occurs ’°The defense requested that the standard instructions be modified so the jury could consider “whether or not the present offense was committed under circumstances which the defendant honestly believed to be a moral justification or extenuation for his conduct.” (5 CT 1249-1250 [Defendant’s Proposed Special Instruction No. 28].) This instruction was refused. (11 RT 2907-2908.) 259 “when any barrier, whetherstatutory, instructional, evidentiary, or otherwise [citation] precludes jury or any of its members[citation] from Cal.3d 612, 693, citing Mills v. Maryland (1988) 486 U.S. 367, 374, McKoy v. North Carolina (1990) 494 US. 433, 438, Skipper v. South Carolina (1986) 476 U.S. 1, 4 and Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399.) “When the claimedbarrierto the jury's consideration of relevant mitigating evidenceis an instruction, the crucial question for determining error ‘is whetherthere is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of? such evidence.” (People v. Mickey, supra, 54 Cal.3d at p.693, quoting Boydev. California (1990) 494 U.S. 370, 386.) The standard instruction, given in this case, tracking section 190.3, factor (f), directs the jury to consider “if applicable . . . [w]hether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuationfor his conduct.” (CALJIC No. 8.85 [italics added]; 5 CT 1192; 11 RT 2930.) UnderCalifornia law, “one who kills in imperfect defense of [another]-in the actual but unreasonable beliefhe mustdefend another from imminent danger of death or great bodily injury-is guilty only of manslaughter.” (People v. Randle (2005) 35 Cal.4th 987, 997[italics added], overruled on other grounds in People v. Sarun Chun (2009) 45 Cal.4th 1172.) Consistent with People v. Randle, supra, appellant did not claim that he acted in reasonable fear that Facundo posed an imminent threat to Charlene, only that he had an actual but unreasonable fear for Charlene’s safety. Because appellant’s requested instructions on imperfect defense of another were denied, the jury had no opportunity to give legal 260 effect to this evidence at the guilt-innocence phase and wasnot awarethat an unreasonable belief in the need to defend another would makea killing manslaughter rather than murder. (See Argument V, supra.) . Atthe penalty phase, the statutory mitigating factor of section 190.3, factor (f), and its corresponding jury instruction set a higher standard for appellant to meet than would have been required for him to be convicted of the lesser offense of manslaughterat the guilt-innocence phase. This stands the Eighth Amendmentonits head. In Eddings v. Oklahoma,the state appellate court committed error because [i]t found that the evidence in mitigation was not relevant because it did not tend to provide a legal excusefram criminal responsibility. Thus the court conceded that Eddings had a “personality disorder,” but cast this evidence aside on thebasis that “he knew the difference betweenright and wrong ... and that is the test of criminal responsibility.” [citation] Similarly, the evidence ofEddings' family history was“useful in explaining” his behavior, but it did not “excuse” the behavior. From these statements it appears that the Court ofCriminal Appeals also considered only that evidence to be mitigating which would tend to support a legal excusefrom criminalliability. (Eddings v. Oklahoma (1982) 455 U.S. 104, 113 [italics added].) It is thus the most fundamental Eighth Amendmenterrorto conflate the standards that apply to evidence in mitigation of the death penalty with those required to establish a defense to the underlying crime, and yet factor (f), in this case, goes further, by setting the standard even higher. This Court has nevertheless insisted that it is not improper to give the factor (f) instruction, reasoning in a case involving a claim of imperfect self-defense that 261 the jury was instructed that a defendant's reasonable belief in moral justification was a mitigating circumstance [citation], thus possibly raising the negative inference that an OTC dSOMdavDie OD Wa OUd PIroper CO Ocratrory. C the jury was also instructed to considerin mitigation “[a]ny other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime.”[Citation.] Hadthe jury believed defendant's evidence that he harbored an honest but unreasonable belief in the need for self-defensive action, the instructions permitted consideration of that information as a mitigating factor under [§ 190.3,] factor (j)-(k). [Citation.] (People v. Murtishaw (1989) (Murtishaw ID) 48 Cal.3d 1001, 1017; accord People v. Murtishaw (2011) (Murtishaw II) 51 Cal.4th 574, 593-594; People v. Lang (1989) 49 Cal.3d 991, 1037.) Appellant submits, however, that a reasonable juror would, at a minimum,be confused by the_juxtaposition of these twoinstructions. It is, for example,“a well-established tenetof statutory construction that a specific statute controls over a general statute.”*’ (S.V. v. Sherwood Sch. Dist. (9th-Cir. 2001) 254 F.3d 877, 880-81 [where two statutes of limitation couldapply to plaintiff's claim, statute applying specifically to claims against school districts and public bodies would apply over general “catchall” statute of limitation “that applies broadly to any claim alleging a ‘liability created by statute’”’]; accord In re Hubbard (1964) 62 Cal.2d 119, 126-127 [use of “specific words and phrases connotes an intent to exclude ®’While other rules of construction — includingthe principle that a statute must be interpreted to avoid unconstitutionality (In re Smith (2008) 42 Cal.4th 1251, 1269) — compel the interpretation that jurors must be allowed to consider any belief in moraljustification — reasonable or not— as a mitigating circumstance, the issue here is whether a reasonable juror could interpret the provision otherwise. 262 that whichis not specifically stated”], overruled in part on other groundsin Bishop v. City ofSan Jose (1969) 1 Cal.3d 56, 63, fn. 6; Martin v. Bd. of Election Com'rs ofCity & County ofSan Francisco (1899) 126 Cal. 404, 411 [The morespecific provision [of law] controls the general”].) It would therefore be eminently reasonable for a juror to conclude that the very specific factor (f) controls over the general, catchall factor (k) such that the defendant’s belief in moral justification may be considered as a mitigating circumstance only ifthe defendant’s belief in his justification is “reasonable.” That is, a juror could very reasonably takeliterally the introductory languageoffactor (k) referring to “any other circumstance”to mean evidence of a type notmentionedin the preceding list of sentencing factors. The likelihood that a juror would so construe the instruction is “substantial” domination — the jury here was not being asked to consider a even greater because — unlike “extreme” emotional disturbance or lesser form of “reasonable belief” under factor (k), but the opposite or absence of a reasonable belief. In this case, the likelihood that the jury applied the instruction in this manneris reinforced bythetrial court’s order denying modification of the death sentence, in which the court stated there was no evidence to support the factor-(f) moral justification mitigating circumstance and did not mention anywhereinhisdiscussion of the mitigating evidence Facundo’s abuse of Charleneor the fact that her family, including appellant, feared for herlife. (5 CT 1324-1326A.) Thus, there is a “reasonable likelihood”that the jurors in this case “understood the challenged instructions to preclude consideration of relevant mitigating evidence” — appellant’s unreasonable belief that he was morally justified in killing Max Facundoto prevent him from further 263 brutalizing appellant’s cousin, Charlene Trujeque. (See Boyde v. California, supra, 494 U.S. at p. 386.) Appellant’s death sentence must dy LL. Ww a therefore be reversed. // H H 264 XVI. THE TRIAL COURT’S REFUSAL TO GIVE LEGALLY ACCURATE INSTRUCTIONS REGARDINGTHESCOPE OF AGGRAVATING AND MITIGATING EVIDENCE AND THE JURORS’ SENTENCING DISCRETION VIOLATED STATE LAW AND APPELLANT’S RIGHT TO A FAIR AND RELIABLE PENALTY DETERMINATION The defense requested a numberof special penalty phase instructions that.accurately reflected the law and would have ensured a more fair and reliable sentencing determination. Specifically, the defense requested instructions clarifying the | definition of mitigating circumstances (5 CT 1231, 1244, 1245,1249-1253, 1254; 11 RT 2904, 2907[Defendant’s Proposed Special Instructions 13, 23, 24, 28 and 29]), the scope of aggravating circumstances (5 CT 1233, 1248, 1271-1272, 11 RT 2904, 2907, 2908[Defendant’s Proposed Special Instructions 15, 27, and 45]), the nature of the weighing process (5 CT” 1256, 1259, 1273, 1275, 1277, 1283, 1284, 1286; 11 RT 2904, 2907-2908, 2909, 2910, 2912 [Defendant’s Proposed Special Instructions 31, 34, 46, 48, 51,58, 59, 61]); and the jury’s ability to consider sympathy or mercy in deciding what sentence to impose (5 CT 1219, 1220; 1221, 1230, 1237- 1238, 1255, 1257, 1258, 1279, 1281; 11 RT 2898, 2899, 2902-2904, 2907, 2908, 2910, 2912 [Defendant’s Proposed Special Instructions 2, 3, 4, 12, 19, 30, 32, 33, 53, 56].) These wereall denied. Thetrial court’s refusal to give these instructions violated state law as well as appellant’s Eighth and Fourteenth Amendmentrightsto a fair penalty trial and reliable penalty determination. 265 A. Applicable Law on Jury Instructions A“defendantis entitled to instructions which direct attention to his guilt” — or his desert of a death sentence ~ “has not been established.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 257, citing People v. Sears (1970) 2 Cal.3d 180, 190.) Thus, even if the standard instructions address the relevant legal principles, the defendantis entitled to have a requestedinstruction givenif it correctly states applicable law. (See People v. Kane (1946) 27 Cal.2d 693, 698, 700 [trial court committed prejudicial error by refusing pinpoint instruction that was correct statement of law pertinentto defendant’s theory of the case and showingits application to the evidence presented]; People v. Mayo (1961) 194 Cal.App.2d 527, 537 [although court's instructions regarding elements of offense were generally correct and adequate,it prejudicially erred in refusing specific instructions pinpointing theory of defense]; People v. Sears, supra, 2 Cak.3d 180, 190 [refusalto give reasonable doubtinstruction pinpointing-theory of defense erroneous despite generally adequate reasonabledoubtinstruction]; People v. Thompkins, supra 195 Cal.App.3d at pp. 256-257 [error to refuse -defendant’s proposed pinpointinstructions “intended to supplementor amplify more general-instructions” on ground they were incomplete-and. duplicated standard CALJIC instructions]; see also Pen. Code, § 109.3, subd.(f) [trial court mustinstruct jury “on any points of law pertinent to the issue, 1f requested by either party”].) At the penalty phase of a capitaltrial the defendant similarly has “a right to ‘clear-instructions which not only do not preclude consideration of mitigating factors’ [citation omitted], but which also ‘guid[e] and focus] the jury’s objective consideration of the particularized circumstances of the 266 individual offense and the individual offender.’ [Citation omitted.]” (People v. Gordon (1990) 50 Cal.3d 1223, 1277, overruled on anotherpoint in People v. Edwards (1991) 54 Cal.3d 787, 835; see also People v. Davenport (1985) 41 Cal.3d 247, 286-287 [appellant denied right to a fair and reliable sentencing determination whereinstructions misled jury regarding scope of mitigating evidence it could consider].) While “a trial court may refuse a proffered instructionif it is an incorrect statement of law, is argumentative, or is duplicative,”or if “it might confuse the jury” (People v. Gurule (2002) 28 Cal.4th 557, 659), noneofthese reasons applied to the instructions proffered by the defense in. this case. To the contrary, each of the requested instructions discussed below was an accurate statement of the law, which would have ensured a fair and reliable sentencing determination as required by-the Eighth and Fourteenth Amendments to the U.S. Constitution. (See, e:g., Johnson v. Mississippi (1988) 486 U.S. 578, 584 [Eighth Amendment “gives rise to a-special ‘need for reliability’” in capital cases], citing Gardner v. Florida (1977) 430 U.S. 349, 363-364 (conc. opn. of White, J.)-and Woodson v. North Carolina (1976) 428 U.S. 280; 305.) | B. The Trial Court Erred by Refusing to Give a Legally Accurate Instruction Clarifying the Definition-of“Mitigating” Circumstances The defense requested a special instructionto clarify the definition of “mitigating circumstance” as follows: A mitigating circumstance is any circumstance arising from the evidence which does net constitute a justification or excusefor killing, or which (does not) reduceit to a lesser degree of crime than first degree murder, but which nevertheless may be considered as extenuating or reducing the 267 moral culpability of the killing, or which makes this murder less deserving of extreme punishmentthan otherfirst degree murders with special circumstances. (5 CT 1231 [Defendant’s Proposed Special Instruction No. 13].) The instruction was refused. (11 RT 2904.) The requested instruction was an accurate statement of the law, and it clarified the technical legal terms of“justification” and “excuse”as well as the word “extenuate,” which were used in the version of CALJIC No. 8.88 given in this case. (5 CT 1205-1206; 11 RT 2936-2938.) Studies have shown that the CALJIC instructions given in this case are not readily understood by lay people, because the vocabulary used is archaic. (See Haney & Lynch, Clarifying Life and Death Matters: An Analysis of Instructional Comprehension and Penalty Phase Closing Arguments (1997) 21 Law andHuman Behavior 575.) The 1997 Haney and Lynch study tested the comprehensibility of the revised CALJIC No.8.88, which incorporated the samedefinition of aggravating and mitigating circumstances as was given in this case. (/d. atp.577:) The study used college students, who would be expected to understand the instructions more easily than the average juror, as subjects. bid.) The subjects were read the instructions three times and then asKed,first, to define aggravating and mitigating in their own words andthento classify the list of sentencing factors from section 190.3 and CALJIC No.8.85 as either aggravating or mitigating. Ud. at p. 578.) Ten percent of the subjects were unable to offer any definition of “mitigation” whatsoever, while 39 percent provided an incorrect definition, 5 percent of these believed the word meantthe opposite ofits actual meaning. (See Haney & Lynch, Clarifying Life and Death, supra, at p. 268 580.) The word “extenuation” was even less comprehensible:eight percent of the subjects could not provide any definition while 74 percent provided an incorrect definition (seven percent of those believing the word meantits opposite), meaning that fully 82 percent of the subjects did not understand what the term “mitigating” meant. (/bid.) The results for “aggravation” were considerably better (only 29 percent could not define the word or gave an incorrect definition), because the word is used more commonly by lay people. (Jbid.) With respect to the specific mitigating circumstances that wereapplicable in this case, 26 percent ofjurors incorrectly believed that the moraljustification mitigating circumstance was actually an aggravating circumstance; and 28 percent misclassified the factor k catchall as | aggravating. (/d. at p. 581.) Thus, the instructions actually given were notsufficient.™ (Cf. People v. Smith (2003) 30 Cal.4th 581, 638 [no prejudice from refusing defense instructions where standard instructions adequate].) Californialaw recognizes that “[t]o perform their job properly and fairly, jurors must understand the legal principles they are charged with applying.It is the trial judge's functionto facilitate such an understanding by any available means. 88Appellant acknowledgesthat this Court has previously rejected challenges to-CALJIC No.8.88 based on these studies, reasoning that “[t]he presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross examination.” (People v. Welch (1999) 20 Cal.4th 701, 773; accord People v. Lee (2011) 51 Cal.4th 620, 652.) Appellant submits, however, that the study should, at a minimum, be groundsfor reconsidering this Court’s unsupported assumption that “the terms ‘aggravating’ and ‘mitigating’ are commonly understood anddo not require further elaboration.” (See People v. Lee, supra, 51 Cal.4thatp. 652.) 269 The mererecitation of technically correct but arcane legal precepts does preciouslittle to insure that jurors can apply the law to a givenset of facts.” an—{Peopte-v-Thompkins,supra,195CatApp.3dp.250foriginaltalics}.)- Here, the requested instruction clarified the terms essential for the jury to give effect to mitigating evidence as required by the Eighth Amendment. It is “firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidencethat mightprovide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit-similar offenses in the future.” (Abdul-Kabirv. Quarterman (2007) 550: U.S. 233, 246; accord Mills v. Maryland (1988) 486 US. 367, 374; Eddings v. Oklahoma (1982) 455 U.S. 104, 110; Lockett v. Ohio (1978) 438 U.S. 586, 604 (plur. opn. ofBurger, C.J.).) The instruction requestedby appellant would have explainedthat “Justification or excuse for the killing” meant reducingit to a lesser degree of crime than first degree murder; and it explained that “extenuating” meant “reducing the moral culpability of the killing,” thus clarifying terms that are particularly confusing to lay people. (5 CT 1231.) Because “there is a reasonable likelihood”thatthe failure to clarify the meaning of mitigating circumstances causedthe jury to disregard relevant mitigating evidence, or even to treat-it as aggravating, appellant’s death sentence must be reversed. (Boyde v. California (1990) 494 U.S. 370, 386.) 270 C. The Trial Court Erred by Refusing to Give Legally Accurate Instructions Concerning the Limitations on Aggravating Circumstances The instructions appellant requested concerning aggravating circumstances werealso legally correct. First, appellant’s requested instruction correctly stated that any factor used to convict appellant may not also be used as an aggravating circumstance. (11 RT 2907; 5 CT 1248 [Defendant’s Special Requested Instruction 27].) It is improper to double count the samefacts as both circumstances of the crime and as special circumstance underfactor (a). (People v. Monterroso (2004) 34 Cal.4th 743, 789-790, citing People v. Melton (1988) 44 Cal.3d 713, 768-769.) Indeed, this Court has held that-such an instruction should be provided on request. ([bid.) Appellant also sought an instruction that aggravating circumstances are limited-to those enumerated in the statute, while there is no such limit on mitigating evidence. (11 RT 2908; 5 CT 1271-1272 [Defendant’s Proposed Special Instruction No. 45].) This was a correct statement of the law. (See, e.g., Hitchock v. Dugger (1987) 481 U.S. 393, 398-399 [mitigating circumstances could not be limited to those enumerated in-statute]; People v. Hawthorne (2009) 46 Cal.4th 67, 92 [aggravating circumstances are limited to those enumerated in statute], abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610; accord People v. Boyd (1985) 38 Cal.3d 762, 775-776.) The requested instruction wasvital in this case -because the prosecution relied heavily on appellant’s letter to District Attorney Garcetti which wasrelevant primarily to the non-statutory ageravating factors of lack of remorse (to which appellant had not opened the door) and future dangerousness, which was the dominant themeofthe prosecutor’s closing argument. (See Argument X, supra.) There is a more 271 than reasonablelikelihood that the jurors, because they were not properly instructed regarding the limitations on aggravating circumstances, weighed Finally, appellant requested an instruction specifying that the absence of mitigating circumstances maynot be considered aggravating. (11 RT 2904; 5 CT 1233 [Defendant’s Proposed Special Instruction No. 15]). This too is a correct statement of the law. (People v. Edelbacher (1989) 47 Cal.3d 983, 1034; People v. Davenport, supra 41 Cal.3d atpp. 289-290.) This instruction has been given in other capital cases, in which it was cited by this Court as neutralizing any harm caused by readingtheentirelist of sentencing factors over defendant’s objection. (See, e.g. People v. Thomas (2011) 51 Cal.4th 449, 507; People v. Smithey (1999) 20 Cal.4th 936, 1006.) In this case, the proposed instruction was particularly important because, as addressed in Arguments V and XV, supra, the central defense at trial had been imperfect defense ofanother, which applies when a defendant has an unreasonable belief that deadly force is necessary to protect another from imminent danger. Thus, the defense never claimed that appellant’s belief that Facundo’s killing wasjustified to prevent him from further brutalizing Charlene was reasonable. Rather, the defense sought to show that appellant had an actual but unreasonable belief in the necessity of killing Facundoto protect-Charlene. The jury was (erroneously) not instructed on the guilt phase defense and therefore wasnot aware that appellant’s unreasonable belief in the necessity of killing Facundo would have reduced his offense to manslaughter. (See Argument V, supra.) The jury was instructed only as to 272 the statutory mitigating circumstance which actually, and unconstitutionally (see Argument XV, supra), set a higher bar than the guilt phase defense. Notonlyis there a “reasonable likelihood” (Boyde v. California, supra, 494 U.S. at p. 386) that the erroneousfactor (f) instruction prevented the jury from giving effect to critical mitigating evidence, but the court’s refusal to give the requested instruction that the absence of a statutory mitigating circumstance is not aggravating also madeit reasonablylikely that the jury would consider the failure to meet factor (f)’s standard as an aggravating circumstance. Theeffect of the error was therefore not only to remove evidence from the mitigating side of the scales but to movethat sameevidenceto the aggravating side of the scales, thereby undermining the reliability of the jury’s sentencing determination in violation of the Eighth and Fourteenth Amendments.” Becauseofthese erroneous instructions, appellant’s death sentence must be reversed. D. The Trial Court Erred by Refusing to Give Legally Accurate Instructions Concerning the Weighing Process The defense asked that the jurors be instructed that “you are never required to return a verdict of death . . . unless you conclude as a matter of your own independent moral judgmentthat death is the only appropriate penalty” (5 CT 1283 [Defendant’s Proposed Special Instruction No. 58}), that any one mitigating circumstance could be sufficient by itself to warrant a life sentence (5 CT 1243, 1256 [Defendant’s Proposed Special Instruction ®°Appellant submits that the cases holdingit is noterror to refusethis instruction, even thoughit is ““a correct statement of the law” are wrongly decided and should be overruled. (See People v. Coddington (2000) 23 Cal.4th 529, 639-40, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, citing People v. Livaditis (1992) 2 Cal.4th 759, 784.) 273 Nos. 22 & 31]), even if several aggravating circumstances were found (5 CT 1284, 1288 [Defendant’s Proposed Special Instruction Nos. 59 & 61)), — ———-—andcould1259 [Defendant’s Proposed Special Instruction No. 34]) even if aggravating circumstances outweighed the mitigating circumstancesthat were foundto be present (5 CT 1273 [Defendant’s Proposed Special Instruction No. 46]). This Court has stressed the “broad powerof leniency and mercy”the jury retains under California’s death penalty law, explaining that the ““weighing’ process” required by the 1978 death penalty law did notalter the jury’s ability to “spare the defendant's life regardless of its view of the ageravation-mitigation balance” because a jury could properly “interpret the 1978 law to mean that aggravating factors ‘outweigh’ mitigating factors only when it believes that death is the appropriate sentence.” (People v. Murtishaw (1989) 48 Cal.3d 1001, 1026-1027 (Murtishaw II), quoting People v. Easley (1983) 34 Cal.3d-858, 882 fn. 15, 884, fn. 19.) Thus, the defendant’s special requested instruction that “you are never required to return a verdict of death . . . unless you conclude as a matter ofyour own independent moral judgment that death is the only appropriate penalty” (5- CT 1283), and that the defendant’s life could be spared for any reason (5 ‘CT 1259), even if aggravating circumstances outweighedthe mitigating circumstances (5 CT 1273), were accurate statements ofthe law. The proposedinstructions would haveclarified for the jury the nature of the process of moral weighing in which they were to engage by demonstrating that any single factor in mitigation might provide a sufficient reason for imposing a sentence other than death. (5 CT 1243, 1256, 1284, 1286; see People v. Sanders (1995) 11 Cal.4th 475, 557 [noting with approvalinstruction that “expressly told the jury that penalty wasnot to be 274 determined by a mechanical process of counting, but rather that the jurors were to assign a weight to each factor, and that a single factor could outweighall other factors”].) This Court has indicated that such an instruction “significantly reduce[s] the risk ofjuror misapprehension” concerningtheir “discretion to determine the appropriate penalty.” (/d.at pp. 557-558; see also People v. Anderson (2001) 25 Cal.4th 543, 599 [approving an instruction that “any one mitigating factor, standing alone,” can suffice as a basis for rejecting death]; People v. Edelbacher, supra, 47 Cal.3d at pp. 1036, 1040 [“properly wordedinstruction . . . to the effect that one mitigating circumstance ‘may be sufficient to support a decision that death is notthe appropriate punishmentin this case’ and that the weight to be given any factor was to be decided by each juror individually” would have helped ensure jury accurately understood scopeofits sentencing discretion];see also People v. Meon (2005) 37 Cal.4th 1, 40-41 [jury’s sentencing decision is “moral endeavor” in which jury.may “exercise unbridled discretion” once defendanthas been found death-eligible, citing California v. Ramos (1983) 463 U.S. 992, 1009, fn. 22].) Because there is-a “reasonable likelihood”that the failure to give the requested instruction prevented the jury-from giving effect to appellant’s mitigating evidence and underminedthereliability of the sentencing Tn other cases, this Court has held such an instruction unnecessary, reasoning that “[b]y stating that death can be imposed-only in one circumstance—-where aggravation substantially outweighs mitigation—the [standard] instruction clearly implies that a sentence less than death may be imposedin all other circumstances.” (People v. Roybal (1998) 19 Cal.4th 481, 525, quoting People v. Ray (1996) 13 Cal.4th 313, 355-56 [original italics].) However, because the proposed instruction was a correct statement of the law, and the point was not specifically covered in the standard instructions, the requested instruction should have been given. 275 determination, appellant’s death sentence must be reversed. (See Boydev. California, supra, 494 U.S.at p. 386.) ~~fheRefusingInstruct the Jury that it Could Consider Sympathy and Mercyin Deciding Whether to Impose a Death Sentence The defense asked that the jury be instructed: If a mitigating circumstance or an aspect of the defendant's backgroundor his character arouses sympathy, empathy, or compassion suchas to persuade you that death is not the appropriate penalty, you may act in response thereto and opt instead for life without possibility of parole. (5 CT 1255 [Defendant’s-Proposed Special Instruction No. 30].)”! This instruction wasalso an accurate statement of the law, being drawn nearly verbatim from People v. Lanphear (1984) 36 Cal.3d 163, 167. The United States Supreme Court recognizes that its modern death penalty jurisprudenceretains a role for mercy. “[TJhe isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who-were sentenced under a system that does not create a substantialrisk of arbitrariness or caprice.” (Gregg-v. Georgia (1976)-428 U.S. 153, 203.) Indeed; the Eighth Amendmentrequiresthat capital sentencing “‘reflect a reasoned moralresponse to the defendant’s- background, character, and crime.’” (Roper v. Simmons (2005) 543 U.S. 551, 603 [originalitalics]; quoting California v. Brown (1987) 479 U.S. *'Several other proposedspecial instructions were to the same effect and would also have instructed the jurors that they had the discretion to return a sentence of life based on compassion or sympathy for the defendant, (5 CT 1220, 1230, 1238, 1257, 1258 [Defendant’s Proposed Special Instruction Nos. 3, 12, 20, 32 & 33]), and that they were allowedto exercise mercy, (5 CT 1279, 1281 [Defendant’s Proposed Special Instruction Nos. 53 & 56]). 276 538, 545 (conc. opn. of O’Connor, J.).) In exercising “this essentially normative task,” the jurors “may apply [their] own moral standardsto the . . evidence presented”and “may reject death if persuaded to do so on the basis of any constitutionally relevant evidence or observation.” (Peoplev. Allen (1986) 42 Cal.3d 1222, 1287 [internal citations and quotation marks omitted, original italics]; see also People v. Rodriguez (1986) 42 Cal.3d 730, 779 [“the sentencing function is inherently mora] and normative, not factual”].) Mercy offers a means for the jurors to deliver a life verdict even. if they find that the aggravating factors outweigh the mitigating factors, or fail to find any mitigating factors. (See People v. Duncan (1991) 53 Cal.3d 955, 979 [a juror may determine that the evidence is insufficient to warrant death even in the absence of mitigating circumstances].) The failure to give the requested instruction wasparticularly prejudical in this case because the prosecutor in his penalty phase closing argument urged thejurors to dismiss the mitigating evidence because itwas “designed to be emotional” and because the defense-was“asking you to judge on emotions”rather than “facts.” (11 RT 2953.) Thus, there is a reasonable likelihood that the jury-excluded consideration of mercy and did not give effect to the mitigating evidence presented in the mistaken belief that any emotional responseto the evidence was not permissible. (See Brewerv.-Quarterman (2007) 550 U.S. 286, 295-296 [Texas’ jury instructions unconstitutionally prevented jury from considering mitigating evidence that could “have served as a basis for mercy”; Californiav. Brown, supra, 479 U.S. at pp. 545-546 (conc. opn. of O’Connor, J.) [noting that attempts to “remove emotion from capital sentencing”-may impermissibly mislead jurors to ignore mitigating evidence].) Appellant’s death sentence must therefore be vacated. 277 XVII. CALIFORNIA’S DEATH PENALTY STATUTE,AS INTERPRETED URTAT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Many features of California’s capital sentencing schemeviolate the United States Constitution. This Court, however, has consistently rejected cogently phrased arguments pointing out these deficiencies. In People v. Schmeck(2005) 37 Cal.4th 240, this Court held that what it considered to be “routine” challenges to California’s punishment schemewill be deemed “fairly presented” for purposes of federal review “even when the defendant does no more than(i) identify the claim in the context of the facts, (ii) note that we previously have rejected the same ora similar claim in a prior decision, and(iii) ask us to reconsider that decision.” (Ud. at pp. 303-304, citing Vasquez v. Hillery (1986) 474 U.S. 254, 257.) In light of this Court’s directive in Schmeck, appellant briefly presents the following challenges in order to urge reconsideration and to preserve these claims for federal review. Should the Court decide to reconsider any of these claims, appellant requests the right to present supplemental briefing. A. Penal Code Section 190.2 Is Impermissibly Broad To meet constitutional muster, a death penalty law must provide a meaningful basis for distinguishing the few cases in whichthe death penalty is imposed from the many cases in whichit is not. (People v. Edelbacher (1989) 47 Cal.3d 983, 1023, citing Furman v. Georgia (1972) 408 US. 238, 313 [conc. opn. of White, J.].) Meeting this criterion requires a state to genuinely narrow,by rational and objective criteria, the class of murderers 278 eligible for the death penalty. (Zant v. Stephens (1983) 462 U.S. 862, 878.) California’s capital sentencing scheme does not meaningfully narrow the pool of murderers eligible for the death penalty. At the time of the offense charged against appellant, Penal Code section 190.2 contained 19 special circumstances (one of which — murder while engaged in felony under subdivision (a)(17) — contained nine qualifying felonies). Given the large numberofspecial circumstances, California’s statutory schemefails to identify the few cases in which the death penalty might be appropriate, but instead makes almostall first degree murders eligible for the death penalty. This Court routinely rejects challenges to the statute’s lack of any meaningful narrowing. (People v. Stanley (1995) 10 Cal.4th 764, 842-843.) This Court should reconsider Stanley andstrike down Penal Code section 190.2 and the current statutory schemeassoall- inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. B. The Broad Application of Section 190.3(a) Violated Appellant’s Constitutional Rights Penal Code Section 190.3, factor (a), directs the jury to consider in aggravation the “circumstances of the crime.” (See CALJIC No.8.85; 5 CT 1192-1193; 11 RT 2929-2931.) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstanceofthe crime, even those that, from case to case, reflect starkly opposite circumstances. Of equal importanceis the use of factor (a) to embrace facts which cover the entire spectrum of circumstances inevitably present in every homicide; facts such as the age of the victim, the age of the defendant, the methodofkilling, the motive for the killing, the time of the 279 killing, and the location ofthe killing. In this case, for instance, the prosecutor arguedthat the circumstances of the Facundo murder were aggravatingbecausethethekilling,ee and because the defense had argued the murder was in defense of Charlene, which the prosecutor deemed offensive to battered women.(11 RT 2964- 2965.) This Court has never applied any limiting construction to factor(a). (People v. Blair (2005) 36 Cal.4th 686, 749 [“circumstances of crime”not required to have spatial or temporal connection to crime].) As a result, the concept of “aggravating factors” has been applied in such a wanton and freakish mannerthat almost all features of every murder can be and have been characterized by prosecutors as “aggravating.” As such, California’s capital sentencing schemeviolates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death upon no basis other than thatthe particular set of circumstances surrounding the instant murder were enoughin themselves, without some narrowing principle, to warrant the imposition of death. (See Maynardv. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepa v. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of ~ decision].) Appellantis aware that the Court has repeatedly rejected the claim that permitting the jury to consider the “circumstances of the crime” within the meaningof section 190.3in the penalty phase results in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown (2004) 34 Cal.4th 382, 401.) Appellant urges the Court to reconsiderthis holding. 280 C. The Death Penalty Statute and Accompanying Jury Instructions Fail to Set Forth the Appropriate Burden of Proof 1. Appellant’s Death Sentence Is Unconstitutional Becauseit Is Not Premised on Findings Made Beyond a Reasonable Doubt California law does not require that a reasonable doubt standard be used during any part of the penalty phase, except as to proofofprior criminality (CALJIC Nos. 8.86, 8.87). (People v. Anderson (2001) 25 Cal.4th 543, 590 (Anderson); People vy. Fairbank (1997) 16 Cal.4th 1223, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not “‘susceptible to a burden-of-proof quantification”].) In conformity with this standard, appellant’s jury was not told that it had to find beyond a reasonable doubt that aggravating factors in this case-outweighed the mitigating factors before determining whether or not to impose a death sentence. In fact, the prosecutor stressed in his -penalty phase closing argument“J cant-emphasize that enough... it’s not a standard beyonda reasonable doubt.” (11 RT 2959.) Blakely v. Washington (2004) 542 U.S. 296, 303-305 (Blakeley), Ring v. Arizona (2002) 536 U.S. 584, 604 (Ring), and Apprendi v. New Jersey (2000) 530 U.S. 466, 478 (Apprendi), require any fact that is used to support an increased sentence (other than a prior conviction) to be submitted to a jury and proved beyond a reasonable doubt. In order to impose the death penalty in this case, appellant’s jury had to first make several factual findings: (1) that aggravating factors were present; (2) that the aggravating factors outweighed the mitigating factors; and (3) that the aggravating factors were so substantial as to make death an appropriate punishment. (CALJIC No.8.88; 5 CT 1205-1206; 11 RT 2936-2938.) 281 Because these additional findings were required before the jury could impose the death sentence, Blakely, Ring and Apprendi require that each of ———thesefindings ~The triat court failed to so instruct the jury and thusfailed to explain the generalprinciples of law “necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715; see Carter v. Kentucky (1981) 450 U.S. 288, 302.) Appellant is mindful that this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning ofApprendi (People v. Anderson, supra, 25 Cal.4th at p. 589, fn. 14), and does not require factual findings (People v. Griffin (2004) 33 Cal.4th 536, 595). The Court has rejected the argument that Apprendi, Blakely, and Ring impose a reasonable doubt standard on California’s . -capital penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges the Courtto reconsider its holding in Prieto so that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, and Blakely. Setting aside the applicability of the Sixth Amendmentto California’s penalty phase proceedings, appellant contends that the sentencer of a:person facing the death penalty is required by due process and the prohibition against cruel and unusual punishment to be convinced beyond a reasonable doubtnotonly that the factual bases for its decision are true, but that death is the appropriate sentence. This Court has previously rejected appellant’s claim that either the Due Process Clauseor the Eighth Amendmentrequires that the jury be instructed that it must decide beyond a reasonable doubtthat the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair, supra, 36 282 Cal.4th at p. 753.) Appellant requests that the Court reconsider this holding. 2. Some Burdenof Proof Is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof State law providesthat the prosecution alwaysbears the burden of proof in a criminal case. (Evid. Code, § 520.) Evidence Code section 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided and appellant is therefore constitutionally entitled under the Fourteenth Amendmentto the burden ofproof provided for by that statute. (Cf: Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant constitutionally entitled to procedural protections afforded by state law].)- Accordingly, appellant’s jury should have been instructed that the State had the burden of persuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and-that it was presumedthat life without parole was an appropriate sentence. CALJIC Nos. 8.85-and 8.88, the instructions given here (5 CT 1192- 1193, 1205-1206; 11 RT 2929-2931, 2936-2938), fail to provide the jury with the guidance legally required for administration of the death penalty to meet constitutional minimum standards, in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court has-held that capital sentencingis not susceptible to burdens of proof or persuasion because the exercise is largely moral and normative, and thus unlike other sentencing.. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137 (Zenart).) This Court has also rejected any instruction on the presumption of life. (People v. Arias (1996) 13 Cal.4th 92, 190 (Arias).) Appellantis entitled to jury instructions that comport with the federal Constitution and thus urges the Court to reconsider 283 its decisions in Lenart and Arias, supra. Even presuming it were permissible not to have any burdenofproof, jury. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burdenofproof in penalty phase under 1977 death penaity law].) Absent such an instruction, there is the possibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden ofproof. 3. Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings a. Aggravating Factors It violates the Sixth, Eighth, andFourteenth Amendments to impose a death sentence whenthere is no assurance the jury, or even a majority of the jury, ever founda single set of aggravating circumstances that warranted the death penalty. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodsonv. North Carolina (1976) 428 U.S. 290, 305.) Nonetheless,-this Court “has held that unanimity with respect to-aggravating factors is not required bystatute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749) The Court reaffirmed this holding after the decision in Ring v. Arizona, supra. (See People v. Prieto, supra, 30 Cal.4th at p: 275.) | | Appellant asserts that-Prieto was incorrectly decided, and application of the Ring reasoning mandates jury unanimity under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity ... is an accepted, vital mechanism to ensurethat real and full deliberation occurs in the jury room,andthat the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina 284 (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy, J.).) Thefailure to require that the jury unanimously find the aggravating factors true also violates the equal protection clause of the federal constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code, § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Mongev. California (1998) 524 U.S. 721, 732; Harmelinv. Michigan (1991) 501 U.S. 957, 994), and since providing more protection to a noncapital defendant than a capital defendant violates the equal protection clause of the Fourteenth Amendment(see e.g., Myers v. Y/st (9" Cir. 1990) 897 F.2d 417, 421), it follows that unanimity with regard to aggravating circumstances.is constitutionally required. To-apply the requirement to an enhancementfinding that-may carry only a maximum punishment.of one year in prison, but-notto a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People-v. Medina (1995) 11 Cal.4th_694, 763-764), would by its inequity violate the equal protection clause of the federal Constitution and byits irrationality violate both the due process and cruel and unusual. punishment clauses of the federal Constitution, as well as the Sixth Amendment’s guarantee ofa trial by jury. Appellant asks the Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. b. Unadjudicated Criminal Activity Appellant’s jury was not instructed that prior criminality had to be found true by a unanimousjury; noris such an instruction generally 285 provided for under California’s sentencing scheme. In fact, the jury was instructed that unanimity was not required. (CALJIC No. 8.87; 5 CT 1194; —2931-2932.)Consequently,anyunadjudicatedcriminal activity by a memberofthe jury as an aggravating factor, as outlined in Penal Codesection 190.3, factor (b), violates due process andthe Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [overturning death penalty based in part on vacated prior conviction].) This Court has routinely rejected this claim. (People v. Anderson , supra, 25 Cal.4th at pp. 584-585.) Here, the prosecution presented evidence of unadjudicated criminalactivity allegedly committed by appellant — an assault with a dead weapon on fellow inmate Frank O’Harein Folsom Prison in 1978 — and arguedthat such activity supported a sentence of death. (See, e.g., 9 RT 2180-2189, 11 RT 2964.) The United States Supreme Court’s decisions in Cunningham v. California (2007) 549 U.S. 270; Blakely v. Washington, supra, 542 US. 296, Ring v. Arizona, supra, 536 U.S. 584, and Apprendi v. New Jersey, supra, 530 U.S. 466, confirm that under-the due process-clause of the- Fourteenth Amendment and thejury trial guarantee of the Sixth Amendment,all of the findings prerequisite to a sentence of death must-be made beyond a reasonable doubt by a unanimousjury. In light of these decisions, any unadjudicated criminal activity must be found true beyond a reasonable doubt by a unanimousjury. Appellant is aware that this Court has rejected this very claim. (People v. Ward (2005) 36 Cal.4th 186, 221-222.) He asks the Court to reconsider its holdings in Anderson and Ward. 286 4. The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard The question of whether to impose the death penalty upon appellant hinged on whetherthe jurors were “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole.” (CALJIC No. 8.88; 5 CT 1205-1206; 11 RT 2937.) The phrase “so substantial” is an impermissibly broad phrase that does not channelor limit the sentencer’s discretion in a mannersufficient to minimize the risk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright (1988) 486 U.S. 356, 362.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) This Court should reconsider that opinion. 5. TheInstructions Failed to Inform the Jury That the Central Determination Is Whether Death-ts the Appropriate Punishment The ultimate question in the penalty phase of a capital caseis _ whether death is the appropriate penalty. (Woodson v. North-Carolina, supra, 428 U.S. at p. 305.) Yet, CALJIC No. 8.88 does not makethis clear to jurors; rather it instructs them they can return a death verdictif the aggravating evidence “warrants” death rather than life without parole. These determinations are not the same. To satisfy the Eighth Amendment “requirement of individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 US. 299, 287 307), the punishment mustfit the offense and the offender,i.e., it must be appropriate (see Zant v. Stephens, supra, 462 U.S. at p. 879). On the other special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructions violate the Eighth and Fourteenth Amendments to the federal Constitution. The Court has previously rejected this claim. (People v. Arias, supra, 13 Cal.4th at p. 171.) Appellant urges this Court to reconsiderthat ruling. 6. The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole Penal Code section 190.3. directs a jury to impose a sentenceoflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory language is consistent with the- individualized consideration of a capital defendant’s circumstancesthat is required under the Eighth Amendment. (See Boyde v. California (1990) 494 U.S..370, 377.) Yet, CALJIC No. 8.88 does not address this proposition, but only informsthe jury of the circumstancesthat permit the rendition of a death verdict. By failing to conform to the mandate of Penal Codesection 190.3, the instruction violated appellant’s right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) This Court has held that since the instruction tells the jury that death can be imposed onlyif it finds that aggravation outweighs mitigation,it is unnecessary to instruct on the converse principle. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Appellant submits that this holding conflicts 288 with numerouscases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelly (1980) 113 Cal.App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due process principles in that the nonreciprocity involved in explaining how a death verdict may be warranted, but failing to explain when an LWOPverdict is required,tilts the balance of forces in favor of the accuser and against the accused. (See Wardius v. Oregon (1973) 412 U.S. 470, 473-474.) 7. The Instructions Violated the Sixth, Eighth and Fourteenth Amendmentsby Failing to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances The failure of the jury instructions to set forth a burden ofproof impermissibly foreclosed the full consideration of mitigating evidence required by the Eighth Amendment. (See Brewer v. Quarterman (2007) 550 U.S. 286, 293-296; Mills v. Maryland (1988) 486 U.S. 367, 374; Lockett v. Ohio (1978) 438 U.S. 586, 604; Woodson v. North Carolina, supra, 428 U.S. at p. 304.) Constitutional error occurs when thereis a likelihood that a jury has applied an instruction in a way that prevents the consideration of constitutionally relevant evidence. (Boyde v. California, supra, 494 U.S. at p. 380.) That occurred here because the jury wasleft with the impression that the defendant bore someparticular burden in proving facts in mitigation. A similar problem is presented by the lack of instruction regarding jury unanimity. Appeliant’s jury wastold in the guilt phase that unanimity was required in order to acquit appellant of any charge or special 289 circumstance. In the absence of an explicit instruction to the contrary, there is a substantial likelihood that the jurors believed unanimity wasalso requiredmitigatingfactors. A requirement of unanimity improperly limits consideration of mitigating evidence in violation of the Eighth Amendmentofthe federal Constitution. (See McKoy v. North Carolina, supra, 494 U.S.at pp. 442-443.) Had the jury been instructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (/bid.; see also Mills v. Maryland, supra, 486 U.S. at p. 374.) Because there is a reasonable likelihood that the jury erroneously believed that unanimity was required, reversal is also required here. In short, the failure to provide the jury with appropriate guidance was prejudicial and requires reversal of appellant’s death sentence since he was deprived ofhis rights to dueprocess, equalprotection anda reliable capital-sentencingdetermination, in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. 8. The-Penalty Jury Should Be Instructed on the Presumptionof Life The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in acriminal case. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumption oflife is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase, there is no statutory requirementthat the jury be instructed as to the presumption oflife. (See Note, The Presumption of Life: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1983) 507 U.S. 272.) 290 Thetrial court’s failure to instruct the jury that the law favorslife and presumeslife imprisonment withoutparole to be the appropriate sentence violated appellant’s right to due process of law (U.S. Const. 14" Amend.), his right to be free from cruel and unusual punishment and to have his sentence determinedin a reliable manner (U.S. Const. 8th & 14” Amends.) andhis right to the equal protection of the laws (U.S. Const. 14" Amend.). In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumptionoflife is not necessary in Californiacapital cases, in part because the United States Supreme Court hasheld that “the state may otherwise structure the penalty determinationas it seesfit,” so long as state law otherwise properly limits death eligibility. (/d. at p. 190.) However, as the other sections of this brief demonstrate, this state’s death penalty-law is remarkably deficient in the protections neededto insure the consistent and reliable imposition of capital punishment. Therefore, a presumptionoflife-instruction is-constitutionally required. D. Failing-to Require That the Jury Make Written Findings Violates Appellant’s Right to Meaningful Appellate Review Consistent with-state law (People v. Fauber (1992)-2 Cal.4th 792, 859), appellant’s jury was not required to make any written findings during the penalty phaseofthe trial. The failure to require written or other specific findings by the jury deprived appellant ofhis rights-under the Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution, as well as his right to meaningful-appellate review to ensure that the death penalty was not capriciously imposed. (See Gregg v. Georgia (1976) 428 U.S. 153, 195.) This Court has rejected these contentions. (People v. Cook (2006) 39 Cal.4th 566, 619.) Appellant urges the Court to reconsiderits decisions on 291 the necessity of written findings. E. The Instructions to the Jury on Mitigating and Aggravating Factors Violated Appellant’s Constitutional Rights 1. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors The inclusion in the list of potential mitigating factors of such adjectives as “extreme” and “substantial” (see CALJIC No. 8.85; Pen. Code, § 190.3, factors (d) and (g); 5 CT 1192-1193; 11 RT 2929-2931) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367, 384; Lockett v. Ohic-(1978) 438 U.S. 586, 604.) Appellant is awarethat the Court has rejected this very argument (People v. Avila (2006) 38 Cal.4th 491, 614), but urges reconsideration. 2. Fhe Failure to Delete Inapplicable Sentencing Factors. Manyofthe sentencing factors set fortin CALJIC No. 8.85 were inapplicable to appellant’s case. (See, e.g., CALJIC No. 8.85 (e) [victim participation], (g) [duress or domination], (i) [age of defendant], (j) [minor participation].) Thetrial court failed to omit those factors from the jury instructions (5 CT1192-1193; 11 RT 2929-293 1), likely confusingthie jury and preventing the jurors-from makinganyreliable determination of the appropriate penalty, in violation of defendant’s constitutional rights. Appellant asks the Court to reconsider its decision in People v. Cook, supra, 39 Cal.4th at p. 618, and hold that-the trial court must delete any inapplicable sentencing factors from the jury’s instructions. 292 3. The Failure to Instruct That Statutory Mitigating Factors Were RelevantSolely as Potential Mitigators In accordance with customary state court practice, nothing in the instructions advised the jury which ofthe sentencing factors in CALJIC No. 8.85 were aggravating, which were mitigating, or which could be either ageravating or mitigating depending uponthe jury’s appraisal of the evidence. (5 CT 1192-1193; 11 RT 2929-2931.) The Court has upheld this practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matter of state law, however, several of the factors set forth in CALJIC No. 8.85 — factors (d), (e), (f), (g), (h), and (j) — were relevant solely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Davenport (1985) 41 Cal.3d 247, 288-289.) Appellant’s jury, however, was left free to concludethat a “not” answeras to any of these “whether or not” sentencing factors could establish an aggravating circumstance. Consequently, the jury was invited to aggravate appellant’s sentence based on non-existent or irrational aggravating factors precluding the reiiable, individualized, capital sentencing determination required by the Eighth and Fourteenth Amendments. (See Stringer v. Black (1992) 503 U.S. 222, 230- 236-) As such, appellant asks the Court to reconsider its holding that the trial court need not instruct the jury that certain sentencingfactors are only relevant as mitigators. | F. The Prohibition Against Inter-case Proportionality Review Guarantees Arbitrary and Disproportionate Imposition of the Death Penalty | The California capital sentencing scheme does not require that either the trial court or this Court undertake a comparison betweenthis and other similar cases regarding the relative proportionality of the sentence imposed, 293 i.€., inter-case proportionality review. (See People v. Fierro (1991) 1 Cal.4th 173, 253.) The failure to conduct inter-case proportionality review violatesFifth,andFourteenthprohibitions against proceedings conductedin a constitutionally arbitrary, unreviewable manneror that violate equal protection or due process. For this reason, appellant urges the Court to reconsiderits failure to require inter-case proportionality review in capital cases. G. The California Capital Sentencing SchemeViolates the Equal Protection Clause - California’s death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes-in violation of the Equal Protection Clause. To the extent that there may be differences between capital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancementallegation must be unanimous and beyonda reasonable-doubt, aggravating and mitigating factors must be established by a preponderanceofthe evidence, and the sentencer mustset forth written reasonsjustifying the-defendant’s sentence. (People v. Sengpadychith (2001)26 Cal.4th 316, 325; Cal. Rules of Court, rules 4.421 and 4:423.) In a capital case, there is no burden of proofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings to justify the defendant’s sentence. Appellant acknowledgesthat the Court has previously rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but he asks the Court to reconsider. 294 H. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms This Court has rejected numeroustimes the claim that the use ofthe death penalty atall, or, alternatively, that the regular use of the death penalty violates international law, the Eighth and Fourteenth Amendments, or “evolving standards of decency” (Trop v. Dulles (1958) 356 U.S. 86, 101). (People v. Cook , supra, 39 Cal.4th at pp. 618-619; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light of the international community’s overwhelming rejection of the death penalty as a regular form of punishment and the U.S. Supreme Court’s decision citing international law to support its decision prohibiting the imposition of capital punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges the Court to reconsider its previous decisions. // // // 295 XVIII. REVERSAL IS REQUIRED BASED ON THE TT~~EFF C UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Assuming arguendothat this Court concludes that noneofthe errors in this case wassufficiently prejudicial, by itself, to require reversal of appellant’s conviction and death sentence, the cumulative effect of the manyerrors that occurred below nevertheless requires reversal of both appellant’s convictions and sentences. Even wherenosingle error in isolation 1s sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may “so infect[] the trial with unfairness”as to violate due process and require reversal. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643; Chambersv. Mississippi (1973) 410 U.S. 284, 302-303; Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Hill (1998) 17 Cal.4th 800, 844-845 [reversing guilt and penalty judgments in capital case for cumulative prosecutorial misconduct]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error]; Parle v. Runnells (9th Cir. 2007) 505 F.3d 922, 927-928 [principle that cumulative errors may violate due processis “clearly established” by Supreme Court precedentj.) The death judgmentitself must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of appellant’s trial. (People v. Sturm (2006) 37 Cal.4th 1218, 1243-1244 [cumulative effect of penalty phase errors prejudicial under state or federal constitutional standards]; People v. Brown (1988) 46 Cal.3d 432, 463 [applying reasonable possibility standard for reversal based on cumulative 296 error].) In this case, the trial court improperly barred the defense from eliciting evidence necessary to appellant’s defense of imperfect defense of another, precluding any questioning about the fact that appellant’s cousin Vicki had recently been murderedby her abusive boyfriend, which intensified the family’s fears that appellant’s cousin Charlene Trujeque would meet the samefate at the hand of her abusive boyfriend, Max Facundo. (Argument VI, supra.) Thetrial court also erroneously jallowed Charlie Trujeque — who could havetestified about Vicki — to make a blanket assertion of his privilege against self-incrimination at the guilt- innocence phase. (Argument IV, supra.) Finally, the trial court refused to instruct the jury on unreasonable defense of another despite substantial evidence that appellant acted with an actual but unreasonable belief that Charlene Trujeque faced imminent danger from Facundo. (ArgumentV, supra.) Theseerrors, if not individually, then collectively, violated appellant’s right to present a defense. At the sametimethatthe trial court’s rulings excluding evidence hamstrung the-defense, the court also allowed the prosecution to introduce completely irrelevant and highly prejudicial evidence, including the provocative and outrageousletter appellant wrote to the district attorney seeking the death penalty (Argument X, supra), and impeaching appellant with a 30-year-old constitutionally invalid prior murder conviction that had no probative value whatsoever as impeachment since appellant’s testimony was inculpatory (Argument XII, supra). Thetrial court also refused to sever the armed robbery that occurred more than a decadeafter the other two offenses for which appellant was on trial and which wasnotcross- admissible in any way. (Argument IX, supra.) These errorsall tended to 297 inflame the jurors’ fears that appellant was a dangerous, habitual criminal, makingit likely that they would resolve against appellant any doubts about aApodacakiltings.—— The combined effect of limiting appellant’s ability to present a defense while simultaneously allowing prejudicial and inflammatory prosecution evidence to be admitted, along with the othererrors raised in this brief, was to render appellant’s trial fundamentally unfair. Appellant’s convictions must therefore be reversed. - At the penaltyphase, the trial court excludedcritical mitigating evidence whenit erroneously allowed both Charlie and Elena Trujeque to invoketheir privilege against self-incrimination even with respect to questions about appellant’s father and his family history (Argument IV, supra), and whenit excluded from the jury’s consideration appellant’s juvenile probation records that contained information about appellant’s early childhood compiled by the State of California when appellant first ~became a ward of the state and on whichthestate relied in placing him in an institutionalsetting at the age of nine (Argument XIII, supra). The standard instruction-omthe mitigating circumstance of reasonable belief in moral justification further skewed the sentencing process toward_death by misleading the jury to believe it could not give effect to mitigating evidence of appellant’s unreasonable beliefthat the killing ofMax Facundo wasjustified to protect Charlene Trujeque from further violence at Facundo’s hand. (Argument XV, supra.) There was, moreover, a reasonable probability that the court’s refusal to instruct the jury that the absence of a mitigating circumstance could not be considered as aggravating misled the jury to treat the absence of a reasonable belief in moraljustification as an aggravating circumstance (Argument XVI, supra), 298 skewing the balancing process toward a death verdict. The balancing process was further skewedbythe introduction of even moreprejudicial portions of the inflammatory Garcetti letter which the prosecutor madethe focal point of his argument for the death penalty. (Argument X, supra.) Thetrial court failed, however, to instruct the jurors that appellant’s desire to be sentenced to death did not diminish their responsibility to determine the appropriateness of the death penalty. (Argument XI, supra.) These errors, combined with the additional penalty-phase instructional errors that further impeded the jury’s ability to give effect to mitigating evidence, (Arguments XVI & XVII, supra), the guilt-innocence phase errors discussed above, and the othererrorsraised in this brief, deprived appellant of a fundamentally fair and reliable sentencing determination, requiring that his death sentence be vacated. H/ / H 299 XIX. THE 25 YEARS TO LIFE SENTENCE FOR COUNTII REFLECTEDIN-THEJUDGMENT MUST BE CORRECTED ON REMAND TO REFLECT THE LEGALLY AUTHORIZED SENTENCE OF 15 YEARS TO LIFE In the abstract ofjudgment, appellant’s sentences for both counts two and three are listed as 25 yearsto life, and the box is checkedindicating appellant was sentenced pursuant to sections 1170.12, subdivisions (a)-(d), and 667, subdivisions(b)-(i). (5 CT 1327.) In the amended information on which appellant was tried, however,the three-strikes sentencing law, sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i), was alleged to apply only to count three, not to count two.” (1 CT 108, 111.) Accordingly, the sentence specified for count two — appellant’s conviction for the second degree murder of Raul Apodaca — is erroneousand must be corrected to conform to the requirements of section 190, subdivision (a), which prescribesa sentence ofi5 years-tolife for the offense of second. degree murder. (See People v. Turk (2008) 164 Cal.App.4th 1361, 1365, tn. 2 [prosecution properly conceded that defendant’s correct sentence was 15 years to life rather than 25 yearsto life, because “except for circumstances not present in this case, section 190 provides ‘every person guilty of murder in the second degree shall be punished by imprisonmentin the state prison for a term of 15 years tolife’”].) The “abstract ofjudgmentis not the judgment ofconviction”but *’The Apodaca murder occurredin January 1987,prior to the effective date of the three strikes law. (§ 667, subds. (b)-(i), added by Stats.1994, ch. 12, § 1, effective Mar. 7, 1994;§ 1170.12, added by initiative, Gen. Elect. (Nov. 8, 1994) [Proposition 184].) 300 only a digest or summary ofthe trial court's oral judgment. (Peoplev. Mitchell (2001) 26 Cal.4th 181, 185.) It “may not add to or modify the judgmentit purports to digest or summarize.” (Ibid. ) If the abstract ofjudgment“fails to reflect the judgment pronounced by the court, the erroris clerical and the record can be corrected at any time to makeit reflect the true facts.” (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) In this case, however,thetrial judge never pronouncedsentence for count two,so the error is not merely clerical. At sentencing, the court read verbatim from the the judgment prepared by the prosecution. (12 RT 3073-3080; 5 CT 1317-1321.) This judgmentdid notspecify a base sentence for count two. Rather,it addressed only the enhancementprovisions, ordering: that upon the death of Tommy Adrian Trujeque, the following additional, consecutive sentences hereby imposedbythis Court shall be deemed to have been completed .. . Asto Count I,.one additional year consecutive forthe use ofa dangerous or deadly weapon. Additionally, 35 years consecutive forthe finding by this Court after waiver-efjury of the seven (7)five year priors within themeaning of Penal Code section 667(a). This to be additionally stayed pending completion of the above sentence [death]. (5 CT 1320-1321;12 RT 3077-3078.) The sentence for count three, in contrast, was specified to be a “consecutive sentence of25 yearsto life pursuant to 1170.12(a-d) and 667(b) through (i).” (12 RT 3078; 5 CT 1321.) The court said nothing further about sentencing. The minute order for the day also repeats verbatim the written judgmentprepared by the prosecution. (5 CT 1312-1313.) It furtherlists the disposition for each count, again omitting any base sentence for count 301 Count (01): Disposition: found guilty - convicted by jury Asto Count (02): Serve 36 years in any state prison. One additional year for the use of a dangerous or deadly weapon. Additionally, seven (7) five year prison terms for 35 years pursuant to 667(A) P.C. to run consecutive to the death sentence, stayed pending successful completion of the death sentence. Count (02): Disposition: found guilty - convicted by jury As to Count (03): 070 yearsto life imprisonmentas to Count (03) 25 years to life pursuant to 1170.12(a-d) and 667(b-i) P.C. Additionally, 10 years consecutive pursuant to 12022.53(b) P.C. Additionally, seven (7) fiveyear prison terms for 35 years pursuant to 667(a)-P.C.to run consecutive to the death sentence, stayed pending successful completion of thedeath sentence. (5 CT 1313-1344.) it is well-establishedthat “[j]udgmentmust be pronouncedorally in the presence ofthe defendant, andit mustreflect the court's determination of the matter beforeit. [Citation.] The pronouncement ofjudgmentis a judicial act [citation], and is to be distinguished from the ministerial act of entering the judgment as pronouncedin the minutes or records of the court [citation].’” (People v. Prater (1977) 71 Cal.App.3d 695, 701, quoting People v. Hartsell (1973) 34 Cal.App.3d 8, 14; accord People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [“Judgment is rendered whenthetrial court 302 orally pronounces sentence”’]; Jn re Bateman (1928) 94 Cal.App. 639, 641 [written words purportedly amending sentence orally pronounced formed no part of the judgment].) Thetrial court here failed to pronounce judgmentas to count two. Accordingly, the case must be remanded for sentencing on that count. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045; People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) Similarly, the trial court did not orally pronounce appellant’s custody credits, as defense counsel indicated he had notyet calculated them. (12 RT 3080.) The abstract ofjudgment states appellant has no credit for time served (5 CT 1327A), but the minute order from the sentencingstates appellant was given total credit for 576 days in custody: 501 actual custody and 75 days good time. (5 CT 1311.) Thus,the trial court should likewise address appellant’s custody credits and correct the abstract ofjudgment— accordingly. (See People v. Little (1993) 19 Cal.App.4th 449, 452[trial court has jurisdiction to-resentence defendant byamending abstract of judgmentto correct calculation of presentence credits].) i // H 303 CONCLUSION For the foregoing reasons, appellants convictions and sentence of DATED: March 23, 2012 Respectfully submitted, MICHAEL J. HERSEK State Public Defender CHRISTINA A. SRAULDING Deputy State Public Defender Attomeys for Appellant 304 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.630(b)(2)) I am the Deputy State Public Defender assigned to represent appellant, TOMMY TRUJEQUE,in this automatic appeal. I conducted a word count ofthis brief using our office’s computer software. On the basis of that computer-generated word count,I certify that this brief, excluding tables and certificates is 86,473 wordsin length. Dated: March 23, 2012. Vadibacerau Christina A. SpAulding 305 DECLARATIONOF SERVICE Re: People v. Tommy Adrian Trujeque No. S083594 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; that my business address is 221 Main Street, 10th Floor, San Francisco, California 94105. I served a true copy of the attached: APPELLANT’SOPENING BRIEF on each of the following, by placing same in an envelope addressed respectively as follows: STACY S. SCHWARTZ Los Angeles Superior Court Deputy Attorney General Attn: ADDIE LOVELACE Attorney General’s Office Death Penalty Coordinator 300 South Spring St. 210 West Temple St., Room M-3 Los Angeles, CA 90013 Los Angeles, CA 90012 SUSAN GARVEY TOMMYA. TRUJEQUE Habeas Corpus Resource Center P.O. Box D-94497 303 Second Street, Suite 400 South San Quentin State Prison San Francisco, CA 94107 San Quentin, CA 94974 (to be hand delivered on 03/26/12) Each said envelope was then, on March 23, 2012, sealed and deposited in the United States mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correct. Signed on March 23, 2012, at San Francisco, Galifornaa. = W_If DECLARANT =
